With the recent Executive Order regarding COVID vaccine mandates for federal employees and contractors, many companies are weighing their options and obligations. While the situation is still evolving and further guidance is needed, we do have some insight into what employers can and cannot do when it comes to requiring the shot.

We spoke with Andrea Porter, our Director of HR Services about the COVID vaccine mandate and what it means for businesses.

1.Can companies require employees to have the COVID vaccine as a term of employment?

Generally speaking, yes, private employers can mandate that employees get vaccinated against Covid-19 and make it a condition of employment. This can apply to both current employees as well as applicants.

2. Are there room for exceptions when it comes to mandating the COVID vaccine?

A worker may have a disability or a religious objection that prevents them from getting the vaccine, creating an exemption. In that instance, the employer needs to go through an interactive process with the individual to determine if an accommodation is needed. If it is needed, they need to determine what accommodation may be reasonable without creating an undue hardship on the company.  After the President’s executive order, it may be possible that simply allowing an employee to undergo weekly testing would be considered a reasonable accommodation, easing that burden on employers.

3.If a company requires a COVID vaccine, does this need to be documented in employee manuals or other places?

Any requirement that is a condition of employment that could result in an employee’s termination for non-compliance should be communicated and documented in writing.  It doesn’t necessarily need to be in the employee handbook, but it should be in writing, ideally with an acknowledgement of receipt from employees.

4. Can you see this being a problem to recruiting/retainment and tips for that if it is?

Absolutely.  We are already experiencing the “Great Resignation” across all industries in the United States and vaccine mandates are adding to the numbers.  We’re starting to see groups of employees protesting and quitting in mass where vaccine mandates have already been required. Employers that are not subject to government vaccine mandates should carefully evaluate whether to enforce a vaccine mandate. This would include an assessment of the risk of transmission of COVID-19 in the workplace, the impact on retention and recruitment, and the cost and administrative burden of enforcement.

5. What’s the best thing for companies to do right now regarding requiring COVID vaccines?

There are many questions that remain to be answered. All employers should carefully monitor the situation for updates to regulations, deadlines, and possible injunctions due to some lawsuits that have already been filed in the courts, while also keeping an eye on any local mandates.

At the moment, we’re currently waiting on further guidance from the various government agencies tasked with outlining rules and regulations for the President’s Path Out of the Pandemic, which was announced in early September.  The executive order for federal employees applies to executive branch employees as well as employees of most federal contractors; it requires all of those employees to be vaccinated by November 22, 2021.  The Safer Federal Workforce Task Force is to issue guidance by September 24, 2021, which should include clarification on which employees of which federal contractors are covered.  Additionally, OSHA has been directed to issue an Emergency Temporary Standard requiring all employees to be vaccinated or be subjected to weekly testing; this covers all employers with 100+ employees.

 

We will continue to watch and update you on the situation as additional guidance is made available. In the meantime, you ay want to explore the following resources as you start to consider your company’s options regarding the COVID vaccine.

Read more about the COVID vaccine mandate for federal contractors here.
Read more about the Covid Plan here.
Read the September 13th  Safer Federal Workforce Task Force COVID-19 Workplace Safety notice here.

The material presented here is educational in nature and is not intended to be, nor should be relied upon, as legal or financial advice. Please consult with an attorney or financial professional for advice.

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