BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.
Question: Is it legal for employers to require the COVID-19 vaccine for workers?
COVID-19 vaccine mandates are one of the most contentious issues of 2021. Some employers have decided to require the vaccine, and many are still undecided, wondering if they should even get involved with employee health decisions.
Based on guidance from the Equal Employment Opportunity Commission (EEOC), federal law permits employers to mandate COVID-19 vaccinations for employees physically entering the workplace. Employers with mandatory vaccine policies must comply with anti-discrimination laws and consider requests for a reasonable accommodation based on disability-related reasons or for religious objections.
State and local laws also impact the legality of a vaccine mandate. New Jersey follows the EEOC’s guidance for most employees but requires certain health care and other high-risk facility employees to be fully vaccinated by September 7, 2021, or submit to COVID-19 testing. In New York, all heath care workers will be required to get vaccinated by September 27, 2021 with no option for testing in place of vaccination, while other State employees will be tested for COVID-19 weekly if unvaccinated.
Then there is a growing list of states considering bills to ban COVID-19 vaccine mandates for schools and employers. Montana law recognizes vaccination status as a protected class and prohibits most employers from refusing employment or making compensation decisions based on vaccination status.
With laws varying by state and industry, here are some practical considerations before implementing a mandatory vaccination policy:
- Follow state and local laws on this subject as they are changing rapidly.
- Unionized employers may need to bargain with the union before implementation.
- Be prepared for some employees to refuse to get vaccinated. Your policy should state the consequence for noncompliance and if it will result in termination.
- Establish a clear and confidential request procedure for exemptions or reasonable accommodations.
- Employers with mandates should pay for the time off to get vaccinated and recover from side effects. This may be required by your state or eligible for a tax credit.
- Determine how workers will show proof of vaccination and how to handle documentation confidentially. Documents must not disclose any protected medical or genetic information.
Vaccine mandates are complicated and involve difficult decisions that could result in undesirable terminations or risk discrimination claims. A voluntary vaccine policy is a softer approach that encourages employees to get the COVID-19 vaccine and may provide incentives.
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DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion.