In the early 1900s, the United States was facing a wave of smallpox outbreaks. And in a landmark case, the Supreme Court found that states could fine residents who refused to receive smallpox injections.
The Supreme Court compared the right to enact public health measures during an epidemic to the right of a government to defend its people from a military invasion. This groundbreaking ruling more than 100 years ago paved the way for federal and state agencies to regulate COVID-19 vaccines for the protection of public health.
Today, as laws are being rapidly passed and introduced, many employers have serious concerns about how they should handle issues surrounding worker vaccinations.
Requiring Worker Vaccinations
First, can you require employees get vaccinated? Federal law says yes – with some exceptions.
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) announced that employers can legally require returning employees to receive the COVID-19 vaccine. However, companies must provide reasonable accommodations for employees who are exempt from mandatory immunization due to a disability or sincerely held religious belief (unless there is an undue hardship to the business).
The same applies to new employees. If you require onsite employees to be vaccinated, you can request that new hires be vaccinated before reporting to work. Again, you should try to accommodate those who can’t receive the vaccine due to religion or a disability.
Requesting Employee Vaccination Status
Federal law also permits you to inquire about workers’ vaccination status for safety or planning purposes. Employers should only ask workers if they have received the vaccine – and nothing more. Follow-up questions could violate the Americans with Disabilities Act (ADA) if the employee’s response divulges personal medical information.
If you require employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, ask only for proof of vaccination with no additional medical information included within the documentation. Further, if you require proof, be sure to keep the information confidential.
Before making any decisions about vaccinations, it’s critical to check your state laws. They may differ from federal rules and regulations.
Handling Employment Decisions
What if employees refuse to get vaccinated? Can you terminate them? It depends. Making employment decisions based on whether workers get vaccinated is generally allowed because vaccination status is not currently a protected classification.
However, about one-third of U.S. states have introduced laws that would make it illegal to discriminate against unvaccinated workers. And on May 7, 2021, Montana became the first state to recognize an individual’s vaccination status as a protected category. In addition, the law bans employers from requiring employees to:
- Disclose their immunization status
- Receive certain types of vaccines or
- Possess an immunization card or passport
The EEOC has urged all U.S. businesses to try to find alternative arrangements for employees who do not get vaccinated. Unvaccinated employees can possibly wear face masks, telecommute or social distance from coworkers. Making these types of allowances – rather than firing or taking other negative employment actions – may prevent potential legal disputes down the line.
Protecting Your Employees
If you have unvaccinated employees at your workplace, you should be on the lookout for harassing or discriminatory behaviors. If a vaccinated employee makes unwelcome comments to an unvaccinated coworker, for example, this could lead to a harassment claim if the employee hasn’t been vaccinated due to legally protected reasons. And as previously mentioned, many states could make vaccination status a protected category in the future.
In addition, the Occupational Safety and Health Administration (OSHA) has developed thorough guidelines for businesses to help prevent the spread of infectious diseases, including the coronavirus. OSHA recommends exploring policies such as flexible worksites and flexible workhours (e.g., staggered shifts) if social distancing is needed.
Finding Compliant Solutions
HRdirect has products and solutions to help you navigate through the legalities. State-specific job applications are available that comply with state laws regarding COVID. And the Company Policies Smart App gives you electronic access to vital policies regarding vaccinations, harassment and other relevant issues.
Both products have been modified to reflect vaccination status as a protected category in Montana, for example, and will continue to be updated to reflect future changes as more jurisdictions follow suit. Businesses should make sure their policies reflect the most current laws to stay in compliance.
An April 2021 Study found that more than 60% of companies in the U.S. planned to require proof of vaccination from their employees. If workers don’t comply, 42% of businesses said the employee will not be allowed to return to the workplace, and 35% said disciplinary actions are on the table, up to and including termination.
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