As an employer, Covid-19 forces you to face very difficult decisions. How do you keep everyone safe, while upholding individual choice? How do you institute public health regulations ethically and legally? What rights do you have, and what rights do candidates and employees hold? This article will describe current rules and suggested best practices to help guide you through such challenging considerations in the days ahead.
The Supreme Court says …
On Thursday, January 13, 2022, the Supreme Court blocked President Biden’s COVID-19 vaccine mandate for large private companies. The executive order, issued on September 9, 2021, required workers at businesses with 100 or more employees to be vaccinated or submit a negative COVID test weekly to enter the workplace. The mandate allowed reasonable accommodations for individuals with medical conditions or sincerely held religious beliefs that prevent them from receiving the vaccine. It also required unvaccinated workers to wear masks indoors at work.
Only three days prior to the Supreme Court decision, the Occupational Safety and Health Administration (OSHA) issued the emergency temporary regulation to take effect. The Supreme Court overruled the regulation, stating in its opinion: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Despite the Supreme Court decision, the regulation affects quite a few US employees. For example, the ruling supports the vaccine mandate for medical facilities that take Medicare or Medicaid payments. And since November 22, 2021, federal employees have been required to be fully vaccinated (except for the limited accommodations), and achieved 96.5 percent compliance at that time.
Parameters for private companies
Private companies may still require COVID-19 vaccines for employment, and many have been doing so for months. Those in opposition of such requirements widely and inaccurately cite the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as a reason for not asking employees whether they have received the COVID-19 vaccine. However, asking someone to show proof of vaccination constitutes neither “protected health information” under HIPAA nor disability-related information under the Americans with Disabilities Act.
Although federal law doesn’t restrict private businesses from asking for proof of vaccination, some states have passed their own laws on the issue, banning proof-of-vaccination requirements.
Reading the rules
The following guidelines will help you institute your own COVID-19 requirements fairly and legally.
- First, be clear about your state’s current proof-of-vaccination laws. If you are in a state that permits it, private employers can require COVID-19 vaccination as a condition of employment. Consult with your legal counsel to ensure you are implementing all requirements correctly.
- You may ask all current employees and hiring candidates questions about their vaccination status, including: Have you received a COVID-19 vaccine? Are you willing to show proof of vaccination status?
- Do not ask candidates why they are not vaccinated. Such inquiries could infringe upon protections from the Americans with Disabilities Act. Instead, if an employee or interviewee states that they are not vaccinated, you may ask if they are willing to receive a vaccine or if they will agree to mandatory COVID-19 testing requirements.
Employment and hiring going forward
We at Brighter Strategies understand the impact of COVID-19 on employment and hiring is vast, and sometimes vague. The United States Equal Employment Opportunity Commission provides detailed and up-to-date information in response to workplace vaccination questions. It even provides a public accommodation request form for organizations to share with employees.
As you update organizational policies and procedures in response to the pandemic, you may see the need for change. Through customized organizational development and change management work, we at Brighter Strategies help our clients make the most of their people, processes, and plans so they can perform at the top of their game. Contact us today to learn more.