Last updated: January 28, 2022
David Heinen, Vice President for Public Policy and Advocacy, North Carolina Center for Nonprofits
With the COVID-19 cases starting to surge again in North Carolina and the Omicron variant looming, many local nonprofits are asking whether they can or should require COVID-19 vaccinations for their staff. To help nonprofits assess whether they should require their employees to be vaccinated – and how they should implement COVID-19 vaccination requirements – the Center is providing answers to some common questions we have been hearing from nonprofit organizations.
Can Nonprofits Require Employees to Be Vaccinated?
Yes. It is legal for nonprofits to require their employees to be vaccinated. The NC General Assembly never took up a pair of bills (H.B. 558 and H.B. 876) that would have prohibited private employers from requiring COVID-19 vaccines for their workers. This means that there is no state law prohibiting nopnrofits from requiring their workers to have COVID-19 vaccinations. Further, the U.S. Department of Justice issued an opinion clarifying that federal law doesn’t stop private employers from requiring their staff to have vaccines that are only authorized under emergency use, as was the case for the Moderna and Johnson & Johnson vaccines for COVID-19. The Pfizer COVID-19 vaccine has been approved by the U.S. Food and Drug Administration.
In fact, the federal government now requires some nonprofit workers to be vaccinated for COVID-19. On September 9, 2021, President Joe Biden issued an executive order requiring all federal contractors and subcontractors – including nonprofits that contract with the federal government – to be vaccinated for COVID-19. Currently, a federal court has stopped the execuitve order from taking effect, but the litigation is ongoing, and courts are likely to make a final decision on the executive order in early 2022. If it is ultimately upheld, the executive order would only apply to nonprofits that are federal contractors or subcontractors, not those that receive federal grants.
On November 4, 2021, two federal government agencies issued rules that will require many nonprofits to require their workers to be vaccinated:
- The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issued an Emergency Temporary Standard (ETS) requiring employers with more than 100 employees – including many large nonprofits – to require their employees to be vaccinated for COVID-19 or to be tested at least once a week. OSHA also published a three-page summary of the new rule, along with FAQs for employers. A variety of federal court rulings have stopped - and then restarted the implementation and enforcement of the Emergency Temporary Standard. On January 25, 2022, OSHA formally withdrew its ETS. The move came less than two weeks after the U.S. Supreme Court issued a stay on the ETS (NFIB v. OSHA), temporarily blocking OSHA’s implementation of the rule. OSHA now plans to move forward with a permanent rule on vaccination requirements for large employers. OSHA could release the permanent rule, which may cover some nonprofit employers, later this year.
- The Centers for Medicare & Medicaid Services (CMS) issued an Emergency Temporary Standard (ETS) requiring workers in most Medicaid and Medicare reimbursed health care facilities, including hospitals and other nonprofit healthcare providers, to be vaccinated for COVID-19. CMS also has published FAQs for employers. The CMS rule does not require unvaccinated employees (e.g. those with medical or religious exemptions) to be tested weekly, although covered nonprofits can provide for testing requirements in their organizational COVID-19 vaccination policies. The U.S. Supreme Court allowed the CMS ETS to move forward, so it is now in effect for applicable health care facilities in North Carolina.
Both the OSHA and CMS rules would allow for exemptions for employees who can’t be vaccinated for medical reasons or because of sincerely-held religious beliefs and for employees who work exclusively remotely.
In addition, the state of North Carolina is recommending that nonprofits consider vaccination requirements. In a July 29, 2021 executive order, Governor Roy Cooper strongly encouraged nonprofits (and other private sector employers) to check the vaccination status of their workers and to require unvaccinated employees to wear masks and to be tested weekly for COVID-19.
What are the Pros and Cons of COVID-19 Vaccination Requirements?
There are several clear benefits of employee vaccination requirements. These include:
- Improved public health outcomes. Right now, just under half of eligible North Carolinians are fully vaccinated. With the Delta variant spreading rapidly, particularly among the unvaccinated, COVID-19 remains a significant and growing health threat to millions of North Carolinians. Early anecdotal evidence from health systems and other businesses that have required staff to be vaccinated suggests that employer requirements are an effective way to convince people to receive a COVID-19 vaccine. Ultimately, a higher vaccination rate is the best way to slow the spread of COVID-19.
- Protection of vulnerable clients. Nonprofits that provide services to seniors, individuals with disabilities or other medical conditions, or children under the age of 12 (who are currently ineligible for COVID-19 vaccinations) should strongly consider requiring their employees to get vaccinated to help protect their clients from contracting COVID-19.
- Greater comfort level for clients, staff, and volunteers. With COVID-19 cases and hospitalizations on the rise again - and with growing reports of (mostly mild) breakthrough COVID-19 cases among people who have been vaccinated – many vaccinated people are wary of being in contact with unvaccinated individuals. Nonprofits that have employee vaccination requirements are likely to engender more trust with their vaccinated staff, clients, volunteers, and community members.
- A faster return to “normal” pre-pandemic operations. For months, many nonprofits have been making plans for resuming more "normal" pre-pandemic activities, such as having staff work in the office, resuming more face-to-face services, or having in-person board meetings, conferences, and fundraising events. Some organizations have had to put these plans on hold in the past few weeks as COVID-19 numbers have risen again in communities across North Carolina. If everyone working at a nonprofit is vaccinated (and if community vaccination rates increase as more employers impose similar requirements), organizations can resume their plans for re-instituting in-person services and events.
Of course, there are also some potential disadvantages of requiring workers to be vaccinated, including:
- Limitations on employees’ personal freedom. For a variety of reasons, some people remain hesitant to receive COVID-19 vaccinations. And some individuals object to any limitations on their personal liberties for philosophical or political reasons. A vaccination requirement may create morale problems - or even resentment of the nonprofit where they work - for people who are hesitant or opposed to getting vaccinated.
- Loss of workers. Nonprofits that adopt vaccination requirements need to accept the reality that some employees may choose to leave their jobs rather than be vaccinated.
- Potential legal liability. While nonprofits are legally permitted to require employees to be vaccinated for COVID, there is a very slight chance that an employee (or former employee) could pursue legal action against a nonprofit in the unlikely event that they suffered health issues as a result of their employee-required vaccination. Also, nonprofits could violate federal non-discrimination laws if they don't provide exceptions or accommodations for employees who are unable (or unwilling) to be vaccinated due to health or religious reasons.
For the vast majority of nonprofits, the pros of a vaccination requirement will greatly outweigh the cons. However, every nonprofit will need to evaluate the benefits and challenges of such a requirement in the context of its mission, the types of programs and services it provides, and the vulnerabilities of its staff, clients, and community. To protect its employees and the community and serve as an example for other nonprofits, the Center recently adopted a policy requiring employees to be vaccinated for COVID-19.
How can nonprofits create vaccination requirement policies that are fair, efficient, and minimize potential legal liability?
Nonprofits planning to implement vaccination requirements should consider their answers to a few important questions as they develop their policies:
- Who should decide whether a nonprofit requires its employees to get COVID-19 vaccinations? While an executive director can recommend that a nonprofit require vaccinations – possibly in consultation with other staff – a vaccination requirement is a significant personnel policy change for most nonprofits, so it would be appropriate for the board of directors to approve it. That doesn't mean that your orgnazation needs to wait until your next regularly-scheduled board meeting to implement a vaccination requirement . Your board can have a special meeting (in person or by conference call or Zoom meeting) to consider a vaccination requirement, or the board could approve it by unanimous written consent by email (as long as your bylaws allow your board to use email for unanimous written consent votes).
- Which employees are covered? Many health systems are requiring all employees (with limited exceptions) to be vaccinated, regardless of whether they are working on-site or from home. This type of broad vaccination requirement will have the greatest impact on increasing overall vaccination rates in the community. However, some nonprofits may be focused primarily on protecting the health of their own employees and clients and may choose to limit the requirement to staff who are working on-site.
- Should vaccination requirements also apply to volunteers? Nonprofits that are seeking to protect their staff and clients from contracting COVID-19 and that hope to maximize vaccination rates in their community probably should consider requiring volunteers to be vaccinated. Legally, volunteer vaccination requirements are probably difficult to enforce, since volunteers generally don't receive anything of value in exchange for their service for nonprofits (meaning they can't be legally bound by a contract with the organizations that they serve).
- What exceptions should employers allow? To prevent legal liability for violating the Americans with Disabilities Act or Title VII of the Civil Rights Act, it is important for nonprofits to allow exceptions to vaccination requirements for workers with disabilities, medical conditions, or sincerely-held religious beliefs that prevent them from being vaccinated. The U.S. Equal Employment Opportunity Commission has provided useful guidance on exceptions and accommodations for individuals with health or religious reasons for not being vaccinated. Blue Avocado magazine also has a useful explanation for ways nonprofits can review requests for religious accommodations. The UNC School of Government has a comprehensive explanation of what constitutes a "sincerely-held religious belief" and how employers can review accommodation requests. Some employers are allowing workers to remain unvaccinated if they don’t come into the office or if they agree to wear masks at work and take weekly COVID-19 tests to help minimize possible spread of the virus to co-workers and clients.
- Should nonprofits provide their employees time off for vaccinations? While it is not absolutely required, nonprofits should make every effort to provide paid time off for when their workers are getting vaccinated and if they need time to recover after their vaccinations. This shouldn't create new financial costs for nonprofits since the American Rescue Plan Act allows nonprofits to receive refundable payroll tax credits for the amount of paid leave they provide to their employees for their vaccinations (or to help their family members get vaccinated).
- How soon should requirements take effect? Realistically, nonprofits need to allow sufficient time for unvaccinated staff to schedule their vaccination appointments and receive two shots if they are getting the Pfizer or Moderna vaccines. This means that nonprofits should allow at least a month – and possibly six weeks – before requiring employees to be fully vaccinated. In the meantime, nonprofits can require employees who aren't fully vaccinated to work from home, wear masks, and/or take weekly COVID-19 tests.
- Should we require employees to have booster shots? As guidance from the CDC and DHHS continues to evolve, nonprofits with existing vaccination policies may need to revisit these policies to consider requiring employees to get booster shots. Depending on when a nonprofit adopted its initial policy, it may need to wait to rrequire emlpyees to get booster shots, since the current guidance is that people who received the Pfizer or Moderna vaccine must wait at least six months to get a booster, and people who were vaccinated with Johnson & Johnson initially must wait two months before getting a booster. Practically, nonprofits are likely to face less resistance or negativity from employees about getting boosters than about requiring initial vaccination.