On September 9, 2021, President Biden signed the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. The order requires Federal Executive Branch employees to be fully vaccinated, except in limited circumstances where an employee is legally entitled to a reasonable accommodation, and employees must be fully vaccinated as quickly as possible and by no later than November 22, 2021.
This Executive Order applies to federal employees, but what about a workplace vaccination policy for non-federal employees? By and large, a workplace vaccination policy for your business is on business owners and managers to enforce–unless your business employees 100 or more workers. In this case, a vaccination policy is required, per a new federal mandate. However, it’s important to be aware that there are a number of compliance rules that need to be followed.
What you can do is create a strategy to make your employees more confident about the COVID-19 vaccination and any workplace vaccination policy. You can do so by following Center for Disease Control (CDC) guidance when applicable and having a firm understanding of all laws that protect your employees.
Equal Employment Opportunity (EEO), Americans with Disabilities Act (ADA), and Title VII.
Per the CDC, federal EEO laws don’t prevent an employer from requiring all employees entering a workplace to be fully vaccinated against COVID-19. Similarly, on July 6, 2021, the U.S. Department of Justice’s Office of Legal Counsel issued a Memorandum Opinion concluding that section 564 of the Federal Food, Drug, and Cosmetic Act does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization (EUA).
However, employers need to make reasonable accommodations as stated in Title VII and the ADA for certain employees.
According to the EEO Commission, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, cannot get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
The most common form of accommodation during the pandemic has been the offering of remote work.
Hiring and Onboarding
When it comes to developing a workplace vaccination policy, it’s important to keep hiring and onboarding in mind—there are some specific pre-employment medical rules you must follow to protect your business from potential litigation.
For example, an employer is allowed to screen job applicants for symptoms of COVID-19 after making a conditional job offer if the employer does so for all newly hired employees entering in the same job. This ADA rule applies whether or not the applicant has a disability.
Furthermore, an employer is allowed to withdraw a job offer when they need an applicant to start immediately if the applicant tests positive for COVID-19; this is based on current CDC guidance.
However, an employer cannot withdraw a job offer or postpone a start date to applicants 65 or older, or pregnant women, because these individuals are at higher risk of infection. The employer can instead propose work accommodations to these individuals.
Tips to Get Your Vaccination Policy Started
If you want to implement a successful workplace vaccination policy, you need to get your employees on board. This may prove to be a challenging task, but there are a number of things you can do to make your employees more comfortable with the new rules.
The simplest thing you can do is make your employees aware of all the vaccination sites in your area. If you want to take this a step further, you could consider hosting a local health department or pharmacy vaccination clinic at your workplace.
Another easy way to ease your employees into the new policy is to educate them. Be sure all employees have access to documentation and resources about COVID-19 so they can be fully informed. Your human resources team can help gather these materials.
You can even incentivize your employees. Consider offering paid time off to employees who are getting the vaccine and to those recovering from any side effects.
If you need further assistance implementing your workplace vaccination policy, consider working with a professional employer organization (PEO).