The United States is working rapidly to deploy as many vaccines as possible to allow workplaces and social settings to be open in a normal capacity soon. This movement can provide a tricky dynamic for employees or potential new hires who do not want to get vaccinated and wonder if an employer can require a covid vaccine. You may also be wondering what your rights as the business owner are when it comes to asking about and requiring COVID-19 vaccines.
Luckily, we’ve done the research for you on multiple scenarios, including the legality of getting a shot or not, the implications of having your employees disclose their vaccination status, and how employment laws are changing to accommodate this unique situation. Read more to find out vaccine mandates in the workplace and how they might affect your business.
Mandating Covid Vaccines for Employees
At this moment in time, employees are not required to get a Covid-19 vaccine under Emergency Use Authorization (EUA) nor the FDA. However, states, local governments or municipalities, or employers can require it under certain settings.
If you as the employer can establish that the vaccine is necessary for on-site or travel-based workplace safety, you can mandate it be implemented. This would include settings such as schools, childcare, healthcare, and many other industries where people are working in close proximity to one another or share a job site.
Similarly, employers can request information about vaccination status, including requesting proof of vaccination. These mandates and requests for information not only apply to current employees, but also pertain to new hires. It is also worth considering that many businesses are also disclosing that a vaccination is a desirable item for certain employees or industries even if they don’t mandate it outright.
Ultimately, the best move when engaging in discussion with an employee or prospective one about their vaccine status is to ask for it in writing. Freelancers, seasonal workers, or people being hired as private help may not be subject to these same protections, so establishing what you as the employer want to require is important for protection for all parties.
Accommodations under the EEOC
Though there are legal and functional pathways to employer-mandated vaccinations, there are also changes and exemptions to them just like any other workplace safety laws. These include updated information from the CDC and states, as well as protections from the ADA, the Rehabilitation Act, and religious beliefs accommodations.
The U.S. Employment Opportunity Commission (EEOC) has provided guidance that states if an employee does not comply with an on-site vaccination policy, they must be accommodated due to:
- Religious Objections under Title VII
- Inability due to disability (ADA)
- Pregnant employees or those with proven medical conditions inhibiting vaccination
Similarly, the EEOC has made it clear that requesting information that jeopardizes private information such as non-Covid medical records or disabilities can be denied. These conditions are all subject to change, and it is always best to have honest dialogue between employees and employer about reasons for mandating or denying vaccination.
Key Considerations for Vaccination or Non-Vaccination
The Covid-19 vaccine is presenting legal and moral quandaries for employers and employees alike. While everyone is looking out for their perceived best interests, they may not align, and that is part of a new reality in employment for the time being. With that in mind, make sure that as an employer, you and your employees are clear about the following policies:
Adverse Reaction Liability
A major question for many employers and employees is whether vaccination injury claims are covered under workers compensation claims should there be an adverse reaction to the vaccine. Though adverse reaction rates are low, this could potentially impact on-site policies in many states.
In most instances, even if vaccination injury claims are covered under workers’ compensation laws, an employee would have to prove negligence on the part of the employer. If a vaccine was provided by a third party, most claims would not include an association with an employer.
Collecting Medical Information
The EEOC has provided consistently updated guidance on organizations asking for proof of vaccine. They have established that asking for vaccine information and records is not directly related to eliciting information about other medical records or disability information, but it can be blocked to protect that information.
Most importantly, you should be minimizing compliance risk by making your requests specific to Covid-19 vaccination only, not asking about reasons for declining the vaccination, and making sure to emphasize that there is no need for alternative medical information relating to the matter.
Implementing a Written Policy
Regardless of your state laws, type of job-site, or safety measures related to Covid-19 vaccination, make sure the policies are in writing and shared with every current or prospective employee. Similarly, make sure to accurately document all conversations, request for records, and statuses related to Covid-19 vaccination. While no one wants to have their rights infringed upon or personal information dug through, it is critical to be up-front about the information necessary to keep a workplace safe.
Protect Your Business
At Paytech, our team of experienced professionals can help provide the proper guidance to your business to protect you and your employees alike. We know that these conversations can be difficult, but they are much easier if you have the proper resources and information to make decisions easier for all parties.
If you are looking to best business practices regarding the covid-19 vaccine, please reach out today. We’d be happy to provide a free consultation about how to protect your business now and in the future.