It’s the rollercoaster ride that keeps on going…
We started our journey upon the introduction of vaccine mandates, came to a sudden halt when they were lifted, picked back up again when they were reintroduced, only to be blocked once again.
Last week we published the latest change in this ongoing saga: the Biden Administration Withdraws COVID-19 Vaccine Mandate for Businesses, where the U.S. Supreme Court blocked the vaccine mandate rule developed by OSHA for businesses with 100+ employees (this mandate remains in place for healthcare workers.)
Confused yet? This latest decision has employers just like you feel more lost than ever when it comes to make the best decisions for their team.
Can you still require your employees to get the Covid-19 vaccine? Keep reading…
What You Should Know
Employers outside of the healthcare industry are no longer subject to a federal vaccine mandate, but may be subject to local or state requirements, so be sure to check your local laws before developing your company vaccination policy.
As of 1/13/22, OSHA cannot and will not enforce the vaccine-or-testing rule and will not be issuing citations; but always check your local laws to ensure your organization remains compliant.
Can I legally require my employees to get the COVID vaccine before returning to work?
The short answer is either:
a) Yes. You can require your employees to get a COVID-19 vaccine prior to returning to the workplace, no matter the size of your organization
b) Yes. You must require your employees to get a COVID-19 vaccine prior to returning to the workplace, if your state and local laws require it.
Although the federal mandate has been blocked, certain local mandates remain in effect. If your business operates in a location without local mandates, you may still require your employees to get vaccinated if you choose to. The at- will-employment policy carried by most private employers allows them to use discretion to dismiss workers for not adhering to workplace policies. As a result, employers may reserve the right to terminate an at will employment if an employee refused to receive the vaccine.
Moreover, the federal government has issued several statements that make it clear that employers are free to mandate vaccinations within their business without violating any federal laws:
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued its own guidance stating mandating the COVID-19 vaccine for employees does not violate anti-discrimination laws.
However, it’s important to note that the EEOC does remind employers to consider sincerely held religious objections or disabilities that may prevent employees from receiving the vaccine. Those employees should be provided with reasonable accommodations and may be subject to regular testing.
On July 26, 2021, the DOJ released guidance explicitly stating that “federal law does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to emergency use authorizations from the U.S. Food and Drug Administration.”
Other Areas of Interest
Now that you’re caught up with at-will employment and federal guidelines, let’s review other areas you should consider:
The impact of state or local laws on vaccine programs: Some states are considering legislation that would prohibit employers from requiring vaccines as a condition of employment.
Wage and hour requirements: For example, if you mandate vaccination, are you required to pay non-exempt employees for getting vaccinated?
How to handle situations where an employee has an adverse reaction to a vaccine.
And the more practical things involve complex employee relations issues to consider, such as:
- Whether it’s practical to require vaccination based on local availability,
- Who will you require to get vaccinated?
- How you may collect and store information on whether someone is vaccinated,
- How long proof of vaccination is good for
This is an ever-evolving situation; therefore, we strongly encourage you to seek the appropriate guidance from an HR professional on whether to institute a mandatory vaccination policy.
What kind of mandatory vaccination policy is appropriate?
Whatever your decision, ensure your policy is consistent for all employees to avoid discriminatory accusations. Any policy mandating vaccination before returning to work must treat all similarly situated employees equally. (In some cases, it’s okay to require only certain employees to receive the vaccine before returning to work as long as it is reasonably related to the duties of the job)
However, employers cannot require that only certain employees receive the vaccine based on non-employment factors such as age. A policy that is based on non-employment factors does not treat all similarly situated employees equally, therefore, a vaccination policy should not single out high-risk individuals based on an individual’s health status.
For example, an employer may require that only the employees prioritized for in-person work must be vaccinated, while employees that will remain remote are not required to get vaccinated. This policy distinguishes between a valid employee class: those who work in-person versus those who work remotely.
Should I give employees paid time off or sick leave to get the vaccine?
Depending on which state your business is located, you may be required to. In New York for example, employers must give employees paid vaccination leave (a maximum of four hours per injection) whereas other states – such as Illinois -are not requiring paid vaccination leave.
Even if your state does not require paid vaccination leave, we still recommend that you consider giving employees additional PTO or sick leave if you are mandating vaccination. A federal tax credit is available to employers (with fewer than 500 employees) who provide employees with PTO to receive the COVID-19 vaccine.
Can an employee refuse to get vaccinated due to a disability or a sincerely held religious belief?
Employers are generally required to reasonably accommodate employees with disabilities and employees with sincerely held religious beliefs or practices.
An employer cannot exclude an individual who cannot be vaccinated due to a disability from the workplace unless the employer can demonstrate:
- The individual poses a “direct threat” due to a “significant risk of substantial harm” to the health or safety of themselves or others, and
- The situation cannot be addressed by reasonable accommodation.
This requires analyzing several factors, including:
- The nature of the risk
- How long the risk will exist
- The severity of the risk and the potential harm
- The likelihood of potential harm
For further guidance, click the link below:
What if an employee refuses to get vaccinated based on personal beliefs?
Employers are generally not required to accommodate employees based on personal needs or beliefs. In other words, if an employee cannot appropriately claim a need based on disability or religious grounds, it is the employer’s choice whether to accommodate that choice.
However, the decision to dismiss or discipline a non-exempt employee who refuses to comply with your mandatory vaccine policy is a challenging one. Not to mention, there is always the possibility that an employee could take legal action following dismissal or disciplinary action. Indeed, lawsuits have already been filed over mandatory vaccine policies. The best thing you can do is consult an employment lawyer before deciding whether to require your employees to be vaccinated.
Some companies are requiring that non-vaccinated employees be masked or get regular tests as part of the reasonable accommodation.
Could COVID-19 Vaccine Mandates be Banned?
It is entirely possible that mandatory vaccine policies will be banned in some states. Although federal legislation to prohibit requiring vaccines in the workplace is unlikely, states could pass their own laws regarding mandatory vaccination policies. There is already some legislative action in certain states, such as North Dakota and Indiana, to ban mandatory vaccination policies. Therefore, your ability to require your employees to get vaccinated before returning to work could change in the coming months.
The decision to require your employees to get vaccinated before returning to the workplace is a complicated one.
If you do decide to mandate Covid-19 vaccination, it’s critical to ensure your policy does not discriminate and allows for medical and religious exemptions. If you are considering terminating/taking disciplinary action against an employee for not getting vaccinated or have further questions on deciding whether to mandate vaccines, we recommend consulting with one of our HR professionals.
Let our team of HR experts at MCDA CCG, INC. ensure your legal compliance throughout your actions. Reach out to us today by phone, email, or even social media to find out more about how we can help you navigate this complicated area while saving you from potential lawsuits.
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