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Can vaccine boosters be required before employees return to the office?

The short answer is yes, you may require eligible employees to receive booster shots before they return to the office, assuming the vaccines are readily available in your area. Experts have different opinions about whether boosters are necessary for everyone right away, but there is a general consensus that boosters provide added protection from COVID-19, especially for older individuals and those with compromised immune systems.

Currently, the Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) recommend booster shots roughly six months after receiving the second dose of the vaccine for individuals who are:

  • 65 and older.
  • At high risk for severe illness from COVID-19.
  • At risk of serious complications from COVID-19 due to occupational exposure.

You may choose to amend your Vaccination Policy to include a booster shot requirement, as long as doses are available to eligible employees. For example, you cannot mandate boosters for all employees if they are only available for a segment of the population in your area. Additionally, you will need to have a plan in place for employees who qualify for a Vaccine Exemption for religious or medical reasons. Options for those employees may include frequent COVID-19 testing or remote work, for example.

As part of the federal vaccine mandate, the Occupational Safety and Health Administration (OSHA) is expected to require private employers with 100 or more employees to require initial doses of the vaccine or undergo weekly COVID-19 testing. It is not yet clear whether the mandate will require eligible employees to get booster shots to be considered fully vaccinated.

Can I require customers to get booster shots before entering the building?

Generally, private businesses may require customers to show proof of COVID-19 vaccination, which may include boosters, before entering their premises, even if there are no federal, state, or local mandates that apply. Currently, due to the limits on booster shot availability in many areas, businesses may want to hold off on requiring proof of a booster vaccine until those are more widely available in their region. As COVID-19-related laws and policies continue to evolve, being considered fully vaccinated may soon require receiving a booster shot. 

Some states, such as Florida, have imposed restrictions on asking customers, while others, like Montana, impose limited restrictions on asking employees to prove they have been vaccinated. Businesses will have to weigh the costs of requiring customers to show proof of vaccine boosters against the potential health risks of not requiring them. Indoor music venues and other such establishments that already require proof of vaccination may extend this requirement to boosters.

How do I know if my employees or customers have received a vaccine booster? 

Individuals who have received a COVID-19 vaccine booster should have it recorded on their CDC-issued record card, typically the same card they were issued when they received the first dose. Keep in mind that fake CDC vaccine record cards have been circulating. Spotting fraudulent vaccine record cards can be difficult, but when in doubt, you can verify a card's authenticity by contacting the medical facility named on the card.

Since vaccination records are maintained by the CDC in conjunction with other federal agencies, state and local public health departments, and tribal health facilities, employees or customers may present proof of vaccination by other means. The California Department of Public Health, for example, allows individuals to access their vaccination records digitally.

It may not be feasible to check each employee's official vaccination card or digital record for authenticity every time they enter the office. Businesses can simplify the process by using Proof of Vaccination forms and maintaining these records after the initial check of a CDC-issued card, rather than requiring official proof for each visit. 

Can I give incentives to employees or customers for getting a booster shot?

If employees are required to get vaccinated against COVID-19 to keep their jobs, then that may be all the incentive they need to comply with your vaccination policy. Vaccine holdouts may prefer the option to be regularly tested instead, while employees who have already been vaccinated are probably on board with getting a booster.

Generally, employers are free to use incentives to encourage employees to get a COVID-19 vaccine or booster. However, you should avoid providing a vaccination program directly to employees, such as including vaccines as part of an on-site wellness program, since pre-screening for the vaccine requires a series of personal medical questions. Also, workplace wellness programs must be voluntary.

Incentives can take any number of forms, including:

  • Cash bonuses.
  • Extra personal days off.
  • Gift cards.

Keep in mind that the American Rescue Plan Act provides tax credits to businesses that provide time off for their employees to receive and recover from the side effects of the vaccine.

It is likely that you will face some resistance to your vaccine policy from both employees and customers. Some may argue that it is a violation of their rights, when in fact, businesses are fully within their legal capacity to make such requirements. You can provide literature and other resources outlining the efficacy and safety of these vaccinations prior to implementing your policy, but some individuals will take issue, regardless of your efforts.

Other COVID-19 related policies may include mask and social distancing requirements, limited occupancy, encouragement of regular hand-washing, a process for disinfecting surfaces, and even telecommuting options. It is important that senior management openly follows company policies. Otherwise, it will be much harder to get full compliance.

Make sure you are well prepared with the facts, consistent in your messaging, and even-handed in the enforcement of your policy. You will also need to be sensitive to legitimate exemption requests, providing alternatives to vaccination. Some employees and customers will disagree with your policy no matter what, but it is your prerogative to ensure a safe and productive workplace.

To learn more about drafting a legally enforceable and effective COVID-19 vaccine policy for your business, reach out to a Rocket Lawyer On Call® attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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