The controversy over COVID-19 vaccine mandates in the workplace continues growing and human resources are sounding the alarm on how employers should approach the matter.

While the Equal Employment Opportunity Commission and impending OSHA regulations will provide some cover to employers who want their employees to get vaccinated, they need to make sure that they follow certain steps in dealing with those who refuse to have a jab, won’t say if they are vaccinated or are claiming a religious or medical exemption from getting inoculated.

The California employment law firm of Shaw Law Group LLC. recently held a webinar on a number of friction points that could get employers in hot water. Here are some tips to avoid getting sued:

• If you require your staff to disclose their vaccination status, treat those who refuse to divulge their status as unvaccinated. There is no point in continuing to hound someone about giving the information if they don’t want to. Just assume they are unvaccinated for the purposes of your office rules.
• If you have set rules requiring your workers to be vaccinated, do not automatically put someone who won’t get vaccinated on a leave of absence if that is your policy. Instead, treat it like an Americans with Disabilities Act request and enter into a meaningful discussion if they request accommodation.
  During this time, you have to consider alternative accommodations, such as requiring them to always wear a mask at work and submit to weekly testing.
• If you are going to accommodate workers who don’t get vaccinated, you as the employer are obligated to cover the costs of such accommodations (like those in the above bullet point). That also applies to employees who refused to get vaccinated on religious or medical grounds.
• Have a process in place for handling requests for accommodations. A request for religious accommodation can put the employer in a quandary since they don’t want to require proof of what part of the person’s religion requires them not to get vaccinated. Shaw Law Group warns: “And, do not question the sincerity of an employee’s stated religious belief, unless you have an ‘objective’ reason to do so.”
• There are no laws or regulations requiring employers to provide a “reasonable accommodation” for political, social or secular personal beliefs that may affect why an employee refuses to get vaccinated.
• If you have an employee who refuses to participate in the accommodation process and provide documentation backing up their religious or medical exemption request, deny the request.

HIPAA Privacy Rule considerations

Meanwhile, the Department of Health and Human Services’ Office for Civil Rights has issued guidance regarding how the HIPAA Privacy Rule affects employees’ disclosures of their COVID-19 vaccination status.

Employers can require employees to disclose whether they have received the COVID-19 vaccine, according to the guidance. That includes requiring them to disclose their status to a client or another third party like a vendor.

Why is this? HIPAA’s Privacy Rule does not regulate the health information an employer can request from its employees as part of the terms and conditions of employment.

Employers who require staff to provide proof of vaccination status are required to keep all documentation or confirmation of vaccination status confidential, under this rule. Any such documentation must not be stored in the employees’ personnel files and must be kept separately.

Finally, your employees are free to disclose their vaccination status to other employees, customers, vendors or trade partners, as the Privacy Rule does not apply to such circumstances.

The takeaway

As more Americans get vaccinated, there is also a significant portion of them that will continue refusing to get inoculated for a number of reasons.

To avoid being sued for overstepping your authority as an employer, if you are requiring vaccinations, make sure you put in place procedures for handling requests for religious or medical accommodation.

You’ll also need to decide how to handle employees who won’t divulge their vaccination status or are refusing vaccination on grounds other than religious or medical reasons.

Finally, if you decide not to require staff to get vaccinated, decide how you will accommodate unvaccinated workers in the workplace, such as requiring full-time masking and weekly COVID-19 testing.

As the COVID-19 pandemic rages on and more employers bring staff back to the workplace, many businesses are considering implementing mandatory vaccination policies for seasonal flus as well as the coronavirus.

A safe and widely accessible vaccine would allow businesses to open their workplaces again and start returning to a semblance of normalcy. But employers are caught in the difficult position of having to protect their workers and customers from infection in their facilities as well as respecting the wishes of individual employees who may object to being required to be vaccinated.

The issue spans Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and guidance. With that in mind, employers mulling mandatory vaccination policies need to consider:

• How to decide if such a policy right for the company,
• How they will enforce the policy,
• The legal risks of enforcing the policy, and
• Employer responsibilities in administering the policy.

Proceed with caution

A number of law firms have written blogs and alerts on the subject of mandatory vaccinations, and the overriding consensus recommendation is to proceed with caution. 

In 2009 pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated that both the Americans with Disabilities Act and Title VII bar an employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs – even during a pandemic.

The guidance stated that under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination.

In these cases, the employer could be required to provide accommodation for these individuals (such as working from home).

Additionally, the employer would have to enter into an interactive process with the worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. This could include:

• The use of personal protective equipment,
• Moving their workstation to a more secluded area,
• Temporary reassignment,
• Working from home, or
• Taking a leave of absence.

One issue that employment law attorneys say may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaxxer,” or someone who objects to vaccines believing that they are dangerous. In this case, depending on which state your business is located, you may or may not be able to compel an anti-vaxxer to get a vaccine shot.

Protecting your firm

To mount a successful defense of a vaccination policy if sued, you would need to be able to show that the policy is job-related and consistent with business necessity. And that the rationale is based on facts, tied to each employee’s job description and that you enforce the policy consistently without prejudice or favoritism. 

Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone that is covered by the ADA or Title VII for refusing a vaccine.

Also, you will need to project and safeguard your employees’ medical information, under the law.

The takeaway

A number of employment law experts say that once a vaccine is widely available, most employers will likely have the right to require that workers get it, as long as they heed the advice above about the ADA and Title VII. Until then, you may want to consider following the 2009 guidance.

If you do implement a policy requiring vaccination, consider:

• Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.
• Allowing employees to opt out entirely if they have medical or religious objections.
• In the event of a medical or religious objection, you must engage in an interactive process to determine whether the individual’s objections can be accommodated.
• Including safeguards for keeping your employees’ medical information confidential.
• Not abandoning your other efforts to keep your workplace safe, such as the use of social distancing, regular cleaning and disinfecting, and the use of personal protective equipment.