Do you have a vaccination policy, and does it take federal workplace anti-discriminations laws into account? It’s an issue that many employers across America are grappling with: should you require employees to get vaccinated before they return to the worksite? Until recently, mandated vaccinations had not been thoroughly tested in the court of law. That all changed last week when the U.S. District Court for the Southern District of Texas dismissed a lawsuit by unvaccinated workers at a Houston hospital. The employees challenged the hospital’s mandate that all employees get COVID-19 shots, claiming that it violates public policy. Not so, said the court.
The ruling sets an important new legal precedent that could inspire other companies to require vaccinations for their employees. But will they?
The Department of Treasury is also urging businesses to take tax credits for employees taking time off to obtain or recover from a vaccine. The tax credits are for paid sick leave equal to the employee’s regular wage, up to $511 per day.
As of March, an Arizona State University survey of more than 1,300 companies found a mixed response on vaccination mandates. Six out of 10 businesses said they will require proof of vaccination from employees. Ninety percent said they will either encourage or require employees to get vaccinated.
There’s a huge distinction between the two. Even though the U.S. Equal Opportunity Commission’s latest guidance said employers can require vaccinations and the Texas court ruling affirms this, it’s a complex issue.
Companies should create a vaccination policy that considers their own workforces, best practices, and the rule of law, both federal and local. Let’s look at this more closely.
Exceptions to the rule
Your vaccination policy needs to consider federal workplace anti-discriminations laws such as the Americans with Disabilities Act, the Genetic Information Nondisclosure Act and Title VII of the Civil Rights Act of 1964.
Employees can refuse to be vaccinated for religious or disability-related reasons and employers must accommodate them unless that will cause undue harm to the business. What does accommodation look like? In many cases, it’s requiring the individual to wear a mask, social distance from others, and get periodic coronavirus tests.
If an employer can show that the unvaccinated individual would pose “a direct threat to the health or safety of other individuals in the workplace,” it might mean that the employee works remotely, is reassigned, or takes a leave of absence.
Whether you mandate vaccines or encourage employees to get them, the EEOC says “An employer introducing a COVID-19 vaccination policy and requiring documentation of vaccination should notify all employees that the employer will consider reasonable accommodation requests based on disability or religious beliefs on an individualized basis.”
It’s up to the employee to request an accommodation.
What about vaccinated employees who have an underlying condition putting them at greater risk if they become infected? The situation should be treated like any other disability says the EEOC.
4 things you shouldn’t do when creating a vaccination policy
1. Don’t depend on federal law alone
The EEOC has made it clear that state and local laws regarding vaccinations supersede federal guidance. But a movement is underway in some state legislatures to allow any unvaccinated employee – no matter their protected status — to bring claims against employers who treat them differently around vaccinations. It’s important to understand local and state laws where you do business and where your employees reside, as well as proposed regulations. In New Jersey for example, employers mandating employee vaccinations must ensure they are compliant with both federal and state laws; including but not limited to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the New Jersey Law Against Discrimination, and the New Jersey Conscientious Employee Protection Act.
2. Don’t ask about vaccination status during job interviews
It may feel natural to ask job candidates if they’ve been vaccinated. This one is especially tricky because there are two EEOC issues here. The agency has made it clear that asking about vaccination status is not a disability-related question. But if you happen to interview someone with a disability, they might feel pressured to disclose that they’re not being vaccinated because of their disability. A better approach is to include any vaccine requirements in job descriptions, and mention that accommodations are available when requested.
3. Don’t leave your supervisors out of the equation
Front line managers are most likely the people that employees will be talking to regarding accommodations. Make sure your supervisors can recognize a request. They should also be trained to be alert for talk around the office that could pose a liability. Comments implying that someone should be vaccinated because of their age, or someone should not receive the shot because they are pregnant is cause for alarm.
4. Don’t forget to include how employee records should be stored
If you are asking employees to show proof that they’ve received COVID-19 shots, be sure to keep those records separate from their personnel files. Asking for proof is not a HIPAA violation, because the Health Insurance Portability and Accountability Act only covers what health care providers can share with others. Still, under the ADA, vaccination status is a confidential medical record and employers must preserve its confidentiality.
No matter your business, if you have employees, you must address vaccinations. It’s your responsibility to keep your team members safe in the workplace and ensure that they are not discriminated against. The issue is complex, and the laws are evolving, as is the COVID-19 virus. NEMR Total HR professionals can advise you on creating and implementing vaccination policies that keep you compliant with current laws.