June 24, 2021

The “Cans” and the “Cannots” that Employers Need to Know About COVID Vaccination Requirements

By Aly Raco, JK Exec Recruiting Manager

Changing regulations around COVID vaccine guidelines are leaving many employers with more questions than answers. As offices reopen and workers look to return to their desks, leaders must act fast to ensure that guidelines are clear for a smooth and safe transition back to the workplace. Below, we address some of the most frequent questions we have received from leaders seeking HR guidance as they compile their vaccine guidelines.

Can I implement a vaccine requirement for my employees?

The short answer is yes, but there are a few critical caveats to consider. The EEOC has offered guidance that if employers are considering requiring COVID-19 vaccination, policies must comply with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and other federal and state workplace laws that protect against discrimination. For example, if vaccinations violate an employee’s religious beliefs, a company must provide appropriate accommodations for the employee to work safely as an unvaccinated person. This includes allowing them to remain remote or ensuring that their workstation is at least six feet of distance from others.

Another consideration to make is whether unvaccinated employees pose a direct threat to the health or safety of other individuals in the workplace. Is there a way to enact “opt-in” masking policies to accommodate both vaccinated and unvaccinated employees? Introducing less intrusive policies can help avoid unwanted resistance. One way that employers can legally encourage vaccinations without requiring them is to offer incentives. For example, developing vaccine education campaigns, covering costs associated with getting vaccinated, and providing extra paid time off for employees to get vaccinated and recover from potential side effects are all great options to promote a vaccinated workforce.

The most important step is to develop an all-inclusive, written policy to share with employees prior to reopening the office to ensure that all employees are clear on protocols before they return.

Can I request proof of vaccination from my employees?

As an employer, if a vaccine mandate is in company policy, you can require that employees provide proof of vaccination. If provided, the treatment of a vaccine card should be as though it was a medical record – confidential and under reasonable protection. It is not required that employers keep record of a vaccination card.

Since vaccine questions cannot be posed until an offer of employment has been made, it is unnecessary for a candidate to bring their vaccine card to an interview.

Can I fire an employee for refusing to get vaccinated?

It depends. As mentioned above, it is required that reasonable accommodations are provided for those with a legitimate ADA or religious exemption, and an employer cannot legally fire an employee with these exemptions for not receiving a vaccine. However, if the employee does not qualify for the exemption, and your policy requires employees be vaccinated, a company may fire the employee. This is

especially low risk in New York, as the state is an “employment at will” state. This means that employers can terminate an employee for any reason that does not discriminate based on race, sexuality, or religion, including refusal of vaccine.

Can I make vaccinations a hiring requirement?

When interviewing and hiring, questions of vaccine status cannot be asked until an offer of employment is placed. If a vaccine mandate is company policy, the offer of employment can be rescinded if said candidate will not comply. Note that the employer must accommodate a start date that’s two weeks after the final vaccine for full immunity if a candidate is getting vaccinated for a job requirement.

If known before recruiting, it is recommended that vaccine requirements be included in the job listing, as well as a note that accommodations will be considered for those that cannot comply due to religious or ADA related reasons.

It’s important to note that these COVID vaccine guidelines are everchanging. Therefore, all of the above insights are subject to change. That’s why it’s important to have a strong HR partner in-house or via a consulting firm like JK Exec to ensure that you’re up to date on the most recent mandates and remain compliant with state and federal laws.

With hope comes uncertainty, but creating an open dialogue with employees on your expectations to protect the safety of your workforce is the most effective way to avoid confusion and resistance.

For more information, please visit jkexec.com.

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