Tag: vaccine

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Vaccine mandates: what are they and how should businesses handle them

Summary

  • Under Biden’s mandate, companies with 100+ employees now must require vaccinations or weekly testing for all workers

  • Vaccine mandates face pushback, both currently and in the past, with 45% of the U.S. population choosing not to be vaccinated

  • Businesses can use qualification tags, notifications, and shift questions to manage employee vaccination and testing status

The COVID-19 delta variant is becoming a serious threat across the nation. Mask mandates are back in vogue and remote work is once again looming on the horizon – all this and flu season hasn’t even begun.

In light of all this, many businesses have turned to their own internal vaccine mandates. One of the largest breweries in the world, Molson Coors, announced earlier this year a vaccine mandate for all non-union corporate, sales, and contract employees. Some states like Washington and Connecticut have also issued strict mandates for government and healthcare employees.

Biden’s Mandate

This trend has made its way into federal policy recently with the introduction of President Biden’s new vaccine mandate that will affect around 80 million people. Businesses with over 100 workers now must require vaccinations or weekly testing for all their employees – the alternative is a $14k fine. Ouch.

And the mandate does not stop there.

Anyone involved with the federal government in any capacity must show proof of vaccination with no weekly testing as an alternative. This means federal employees, contractors, and federally funded healthcare workers all are required to be vaccinated.

Government officials in states like Texas, South Carolina, and Florida are pushing back, with many citing the new mandates from the administration as overreaching and unconstitutional. Florida governor Ron DeSantis recently signed an executive order in direct retaliation to Biden’s mandate. The rule bans Florida employers and businesses from requiring people to provide proof of vaccination. Failure to comply with the vaccine passport ban results in a $5,000 fine per case. How this state rule will clash with the federal mandate remains to be seen.

This kind of contention is nothing new.

A Divisive History

Vaccine requirements in the past have almost always been met with resistance, and occasionally even full-blown lawsuits. Medical workers in Houston are suing their hospital a second time now after their first case was dismissed earlier this year. The 61 employees are suing in the wake of being suspended and fired for failure to comply with their hospital’s stringent vaccine requirements.

Unions have also traditionally held anti-vaccine mandate policies.

In Chicago, the police union refused to comply with local vaccine requirements announced last month. In fact, the union is reportedly prepared to go to court over the matter. However, many other unions have changed their policies in light of both Biden’s mandates as well as the FDA’s approval of Pfizer last month. Even so, vaccine mandates are still a topic of division among unions – this is something important for companies to keep in mind when navigating Biden’s new requirements.

Staying Compliant

Needless to say, there is a lot of tension surrounding vaccine passport culture. Whether the new mandates are constitutional or not, the fact of the matter is they are here, and business owners everywhere need to do their best to stay compliant.

For companies with 100+ employees not involved with the federal government, the first step to staying compliant is understanding who is exempt from vaccination.

According to the EEOC, an employer cannot issue a blanket vaccine requirement without providing appropriate exceptions for employees with certain medical conditions or religious beliefs. If workers cite one of these exceptions, employers can only mandate that they provide weekly negative test results.

Understanding the laws and technicalities surrounding all these changes is one thing; effectively adapting a workforce management system to these changes is a whole other matter.

Qualifications and Accommodations

There are two primary areas to keep in mind when dealing with the onset of nationwide vaccine mandates: qualifications and accommodations. Managers need to learn how to properly balance vaccine qualification requirements for specific jobs with accommodations for employees that meet exemptions. Accomplishing this balance will translate to an organized and collaborative workforce.

To potentially assist with balancing qualifications and accommodations, Workforce.com offers a few useful features.

The Limiting Scheduling According to Qualifications feature allows managers to keep track of and update employee certifications required for specific jobs. Since vaccines are essentially a kind of certification now, this feature is nearly essential in 2021. By adding a vaccinated status to the customizable qualifications list, managers are able to automatically restrict shifts to various employees.

Joseph Cuellar, a software consultant at Workforce.com, notes, “recently we’ve seen a lot of companies use the qualifications feature to make sure they’re on top of vaccination requirements.” In the coming months, this trend is likely to continue.

Another way for businesses to manage their COVID-19 vaccine and testing requirements is to have employees answer pertinent questions when clocking in. With Workforce.com, managers can prompt employees with questions like these to confirm that they understand the vaccine and testing requirements associated with employment, or confirm that they’ve not exhibited symptoms of COVID-19.

As previously mentioned, these vaccine related qualifications for shifts must be balanced with accommodations.

Some employees may meet one of the two exceptions for getting vaccinated, and organizations should consider properly accommodating them. If they choose not to, they run the risk of losing significant human capital at a time when national staffing shortages are plaguing various industries.

To successfully accommodate exempt employees, both the qualifications tool as well as clock-in questions may be used. Managers can also send weekly reminder notifications to exempt employees to get tested. They can also create a custom qualification tag for testing status that expires after a week. As a daily safeguard, clock-in questions regarding proof of negative tests can also be used.

Vaccine-heavy Future

At the end of the day, if your company has over 100 workers, it is safest to assume that you’ll need a way to keep track of vaccination status across your workforce. Tracking the status of vaccinations and negative test results can be complicated, but there are ways to make it a clear and concise process with workforce management solutions.

Times are hard. Let us make them a little easier for you. Chat with us today over the phone about handling vaccines and testing requirements, or leave your email below and one of our team members will be in touch.

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Hospital employees are about to lose a vaccination lawsuit against their employer in spectacular fashion

vaccination, workplace

Some 117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine.

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is “illegally requiring its employees to be injected with an experimental vaccine as a condition of employment.” The lawsuit adds that the hospital’s vaccine requirement violates the “Nuremberg Code and the public policy of the state of Texas.”

In a statement, hospital CEO Dr. Marc Boom said, “It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental.”

Dr. Boom is 100 percent correct; the hospital’s policy is legal. Here’s why, and why this lawsuit will fail spectacularly.
1. The EEOC expressly says that mandatory vaccine policies are 100 percent legal (as long as an employer makes allowances to accommodate employees whose underlying disabilities, sincerely held religious beliefs, practices, or observances, or pregnancy prevents them from getting vaccinated). Because I’ve seen zero references that any of the 117 plaintiffs are claiming an ADA or Title VII violation, I conclude that the hospital has met its legal obligations in this regard. (Note, however, that Texas is considering pending legislation that would make “COVID-19 vaccination status” a protected class under its employment discrimination law.)
2. Public policy actually favors as many individuals getting vaccinated as possible. Just ask the Biden White House, the CDC, the EEOC, OSHA, just about any other government agency, and even the State of Texas (although its governor did sign an Executive Order prohibiting government entities from compelling that anyone receives a COVID-19 vaccine administered under an emergency use authorization). Note also that there are efforts underway in states across the country (e.g., Ohio) to prohibit a business from mandating vaccines or permitting individuals to decline a required vaccine based on medical contraindications, natural immunity, or reasons of conscience.
3. The Nuremberg Code is not a thing, at least not in this context. In fact, there’s been a lot of chatting lately about the Nuremberg Code as a justification to refuse vaccine mandates. It’s wrong and it’s offensive. It’s a set of research ethics principles for human experimentation created as a result of the Nuremberg trials at the end of World War II. It was a reaction to the medical atrocities committed by Dr. Josef Mengele and other Nazis during the war, with the intent of protecting people from suffering similar atrocities. To compare Nazi war crimes to a life-saving vaccine that has been tested and vetted is the height of disgusting selfishness.
Bottom line: If you want to mandate that your employees get vaccinated as a condition of employment, you are legally in the clear to do so, subject to reasonable accommodation exceptions under the ADA for disabled employees, and under Title VII for employees’ sincerely held religious beliefs, practices, or observances, and for pregnant employees. Any other gripes, complaints, or objections by employees are just smokescreens that you can legally ignore, at least for now.
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Another reason not to mandate the COVID-19 vaccine for employees

COVID-19, vaccine, flu

I’ve not hidden my belief that employers should not be mandating that their employees receive the COVID-19 vaccine as a condition of employment. Now, OSHA offers yet another reason why employers should recommend, but not mandate, the vaccine.

Per OSHA, if the vaccine is mandatory, then an employer must record an employee’s adverse reaction or side effects on its OSHA log.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?

No. Although adverse reactions to recommended COVID-19 vaccines may be recordable…, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

A few more points that OSHA made about this issue.
1. To avoid reporting, the vaccine must be truly voluntary and an employee cannot suffer any repercussions from that choice. For example, an employee’s choice to accept or reject the vaccine cannot affect a performance rating, bonus payment, or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.
2. The method by which employees might receive a recommended vaccine does not matter. This rule also applies even if an employer makes the COVID vaccine available onsite or otherwise makes arrangements for employees to receive it offsite. As long it the employee’s choice is voluntary, side effects and reactions are not recordable.
So there you have it. Yet another reason not to mandate that employees receive the COVID vaccine — the administrative burden of recording reactions and side effects, and the risk of potential OSHA citations and fines for failing to do so.
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Please pay your employees for time off related to the COVID-19 vaccine

paid time off, PTO report

Earlier this week, the House passed an extension of the FFCRA as part of its $1.9 trillion COVID-19 stimulus bill. (I’ll cover its details in a future post, but if you’re curious now, head over to Jeff Nowak’s FMLA Insights.)

One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness or condition related to the vaccine.

Bravo! But here’s the thing. Until this passes and becomes law, and even if it doesn’t become law, employers should be paying employees for time off related to the COVID vaccine. At least for now, vaccine appointments are scarce and employees who are eligible to get vaccinated must take appointments when they can get them. Many will need to get their vaccines during the workday. Moreover, post-vaccination, some employees will have a reaction serious enough to keep them house-bound for a day or so.

The way through the end of this pandemic and returning our lives to normal is by getting enough shots in arms as quickly as possible. As employers, want to encourage our employees to get vaccinated.

We don’t want employees to feel like they have to choose between obtaining a vaccine and obtaining a paycheck. Some will choose poorly. By paying employees for time off from work related to COVID-19 vaccinations, we are making the decision that these vaccines are a priority, and that we are not standing in our employees’ way from obtaining them as soon as possible.

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Employee time off for the COVID-19 vaccine

COVID-19, vaccine, flu

At some point over the next few months, some (most?) of your employees will receive the COVID-19 vaccine.

Depending on the rules of your state, the nature of your business and the age or medical issues of your employees, some may already have. I’ve previously covered the legal issues surrounding the vaccine, here, here, and here. Today I want to cover a practical issue — time off related to the vaccination.

1. Please offer your employees paid time off to obtain both doses of the vaccine. To reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated. We want to make it easier for employees to be vaccinated, not more difficult. Please don’t make employees choose between their paychecks and a vaccine. The hour or two you will pay for the amount of time they spend getting vaccinated will pale in comparison to the weeks off they will need if they catch the virus.

2. Understand that a certain percentage of your employees will have a reaction to the virus and be too sick to come to work in its immediate aftermath. The most common side effects, which most commonly follow the second dose, include pain at the site of the injection, painful, swollen lymph nodes in the arm where the vaccine was injected, tiredness, headache, muscle or joint aches, nausea and vomiting, fever or chills. For some, these side effects will mirror the virus itself in causing a high, debilitating fever. These side effects typically last no more than 24 hours. If I’m you, I’m telling employees that if they experience side effects you will provide a paid day off for recuperation. Again, we want to have policies that encourage employees to get shots in arms, not forcing a choice between a paycheck and a vaccine.

This pandemic won’t end until enough people are vaccinated. Employers, do your part by having policies in place that encourage as many vaccinations as possible.

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As new COVID-19 variants double down on transmissibility, OSHA steps up preventative measures

COVID-19, vaccine, flu
“Wear a mask and stay 6 feel apart.” It might sound like Groundhog Day to keep repeating this mantra. It’s also the most basic and most important steps we can take to remain safe, healthy and COVID-free.
Last week OSHA published new guidance for employers about mitigating and preventing the spread of COVID-19 in the workplace. While I recommend you read it, understand it and adopt its teachings in your workplace as best practices to keep your employees safe and healthy, I want to draw your attention to this language.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

COVID-19 is strengthening. New variants of the virus are making it more transmissible and potentially more virulent. Now is not the time to loosen COVID safety rules, especially around the most basic of steps we must take to remain safe and healthy—masks and physical distancing. This holds true even if your employees are vaccinated, as science does not yet know if the vaccine prevents the transmission from person-to-person.
The vaccine does offer us a light at the end of the very long and dark COVID tunnel, but we cannot allow it to give us a false sense of security. COVID-19 is fighting back; we must continue to fight back, too.
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The COVID-19 vaccine and race discrimination

employment law

One issue the EEOC omitted from its technical guidance on the COVID-19 vaccine is the issue of race discrimination.

According to one recent study, 57% of African Americans say that they definitely or probably will not get the COVID-19 vaccine. Many point to their distrust of the federal government fueled by decades of medical studies on Black people, including the Tuskegee Experiment, which left hundreds of Black men untreated for syphilis between 1932 and 1972.
If you are going to adopt a mandatory vaccination policy for your workplace (which the EEOC says you can do, subject to reasonable accommodation exceptions under the ADA for medical issues and Title VII for sincerely held religious beliefs or observances), then you must account for the possibility of that policy having a disparate impact based on race. Otherwise, you might be setting yourself up for a potential race discrimination lawsuit.
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EEOC releases guidance on the COVID-19 vaccine

COVID-19, vaccine, flu

Yesterday, the EEOC published its guidance on the COVID-19 vaccine under the ADA and GINA, in the form of nine Q&As. You can read them in their totality here.

The TL;DR: yes, you can force employees to receive the COVID-19 vaccine as a condition of employment (although the should is an entirely different issue), subject to limits on reasonable accommodations for employees’ disabilities and sincerely held religious practices or beliefs and subject to limits on pre-vaccination medical questions.

That’s more or less aligned with everyone’s collective conventional wisdom on this issue. What is new in this guidance is the agency’s position on what to do with employees who refuse the vaccine for medical or religious reasons.

If an employer requires vaccinations when they are available, and an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, the employer must accommodate that request unless the employer can show that “an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’ … with a “determination that an unvaccinated individual will expose others to the virus at the worksite.” Even then, an “employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation … that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” Moreover, a direct threat determination and an exclusion of an unvaccinated employee from the workplace does not necessarily equate to termination. An employer must in this case consider alternative accommodations, including remote work or an unpaid leave of absence.

Sincerely held religious practices or beliefs present a different problem for employees since Title VII does not offer a similar direct threat defense to an accommodation request. According to the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.” As is the case under the ADA, however, this lawful exclusion does not necessarily equate to termination, and alternative accommodations should be considered.
The bottom line for employers? The COVID-19 vaccine is here and will be available within months for your employees. Now is the time to figure out how you will handle it for your employees. Will you require it or recommend it? Will you offer it on-site or send employees elsewhere for the vaccine? What will you do when an employee objects for medical or religious reasons? Planning is everything, and with an issue this important there is no reason to be caught unprepared.
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Coronavirus update: Vaccines

COVID-19, vaccine, flu

We are days away from the FDA approving two different COVID-19 vaccines, and it is being reported that the first people could start receiving the vaccine as early as Friday, Dec. 11.

While I covered the topic of employer-mandated vaccines earlier this year, I understand that everyone doesn’t necessarily see or read every post I write. Thus, because of just how important this issue will quickly become for employers, today I’m directing you to my thoughts from three months ago: Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?

The TL;DR: Employers can legally require that employees get vaccinated, subject to reasonable accommodation exceptions under the ADA for disabilities and under Title VII for sincerely held religious beliefs.

But can doesn’t necessarily mean should, and employers should be wary about requiring what employees do with their bodies; instead, employers should be strongly encouraging employees to get the COVID-19 vaccine when they qualify to do so.