Making Sense of Employers’ Rights and Requirements: COVID-19 Vaccines

First disclaimer is that new updates and information are provided on a continuous basis, so this may be outdated by the time this article is written, let alone by the time it is published. Second disclaimer is that this article is not an opinion piece; it is intended to focus on what employers may or must do related to the vaccination status of their employees and job applicants. This can be complicated since it depends on the size of your organization, whether you are a private or federal employer, and, in some cases, it depends on where you operate.

 

Vaccine Mandates for Federal Workers

If you are a federal employer, you should be familiar with the Executive Order requiring COVID-19 vaccinations for federal employees that has been in effect since September 9, 2021. 

 

Laws Impacting Private Workers

An Emergency Temporary Standard (ETS) was issued on June 10, 2021, that requires healthcare workers to be vaccinated and is currently scheduled to end in December 2021 but could be extended. 

At the time of print, there are no federal regulations in place requiring all private workers to be vaccinated beyond those who qualify as healthcare workers. For the most updated information about the proposed ETS for employers with more than 100 employees, please refer to the Occupational Safety and Health Administration (OSHA) website.

Additional guidance for private employers on protecting workers by preventing and mitigating COVID-19 in the workplace can be found here on OSHA’s website. 

 

State and Local Considerations for Employers Governing Vaccinations

There may be state and local laws that determine whether you are allowed to require employees to show proof of vaccination. It’s important to consult with your legal team to determine if these regulations apply to your workforce.

 

Your Right to Protect the Workplace

Federal EEO laws do not prevent employers from implementing vaccination requirements. As an employer, you have the right to protect the health and safety of your employees and customers. With that said, new mandatory vaccination policies are still subject to requirements such as disability accommodation requests, so employers should continue to perform the interactive process to determine what accommodations may be appropriate.

If you have remote workers who have no contact with clients or co-workers, it will be hard to justify that they are a direct threat to others and therefore may be difficult to mandate vaccinations or requirements to test regularly. For employers with an onsite workforce and a mandatory vaccination policy, Cadient Talent can help configure these updated terms of employment and pre-screener questions for you in the Candidate Experience.

 

Accommodation Protections – Disability and Religious Rights

Federal laws provide protections for people with disabilities under the Americans with Disabilities Act (ADA). People with underlying conditions that qualify as a disability and people who are pregnant are protected from disparate treatment. Religious accommodations are also required under federal law if it does not cause undue hardship for the employer’s business operations. The EEOC recently updated its guidance regarding religious exemptions from COVID-19 vaccines, and you can read more details about that here.

For individuals who qualify for vaccination exemptions or for workers with mixed vaccination status working in at-risk occupations, reasonable accommodations could include:

  • Adhering to testing protocols
  • Working remotely – determine if physical proximity is truly an essential function of the job
  • Flexible schedules – allow working during hours or shifts where there is less exposure to others
  • Reassignment to another position
  • Incremental time off (paid or unpaid) but not indefinite leave as this is not reasonable

 

For More Information

Another resource for suggested COVID-19 accommodations is the Job Accommodation Network (JAN) website. For more information about COVID-19 requirements, refer to the EEOC’s website and consult with your legal team. 

 

 

Dana Wazny

Legal Analyst, Product Compliance