by Terri Olson
The decision to mandate CDC recommended COVID-19 injections is becoming almost every employer’s challenge. While we await Biden’s federal mandate via OSHA for employers with 100+ employees, most of you have fewer employees yet still have questions.
Although it is becoming well accepted that an employer requires vaccines and we may see more and more employers making this decision in an attempt to reduce the spread of the virus, there are important issues to consider in making that decision for your business or organization. After a discussion on this topic with employment attorney, Amy Patton, partner at Payne & Fears, here are some considerations in making your decision:
- Employers are required to ascertain the vaccination status of employees under Cal-OSHA guidelines. This can be done with a Self-Attestation form. You are not required to maintain copies of the vax cards, but if you do, they must be retained in a confidential file as with any medically related employee information.
- The EEOC and DFEH have determined that it is acceptable to mandate the COVID-19 injection with a couple exceptions below.
- If an employee refuses a vaccination for religious purposes, you must protect the employee’s rights and prevent religious discrimination by treating this as any other discrimination issue, considering what reasonable accommodations could be made to allow the employee to continue performing the job. Likewise, if an employee cannot take the drug due to a medical condition and advice against doing so from his/her physician, you need to consider what reasonable accommodation(s) can be made for this individual to be able to continue performing the job. Look at and analyze these two scenarios like any other discrimination issue. Perhaps a reasonable accommodation would include weekly testing, fewer hours or restricted work areas along with masks and physical distancing.
- Employees not willing to or uncomfortable with taking a vaccine will probably give an employer push back (including resigning) and the employer needs to decide how to deal with that before mandating vaccines. In light of the difficulty in finding new employees these days, it could be even more difficult to find candidates willing to be vaccinated as part of the job requirements. Being heavy handed on the vaccine mandate could make recruiting even more difficult.
- Consider how you might restructure a department, job duties, etc. to allow non-vaccinated employees to still perform their jobs safely.
- Discuss your challenges with employees explaining how customers/clients, vendors, venues and others you conduct business with are now requiring anyone entering their business to be vaccinated which is making it more difficult to assign non-vaccinated employees or provide them with a full work schedule.
- If an employee becomes ill or dies as a result of an employer-mandated COVID-19 vaccine, an employer needs to file a workers’ comp claim, report it on the OSHA 300 Log and comply with all workers’ comp requirements. (Note that it is unlikely that the employee or his/her survivor would be successful filing a civil lawsuit against an employer for a mandated vaccine related injury or fatality.)
The vaccination rate is increasing as people feel either pressured by family, friends and others or are more comfortable with their options, so you may consider waiting to see if your employees change their minds over time eliminating the need to mandate.
These are issues to consider in making your decision whether to mandate the COVID-19 vaccine or not. If you want to discuss this further or want a Self-Attestation form, contact Terri Olson, Human Resources Consultant, at firstname.lastname@example.org or (714) 609-0504.
NOTE: This article is for informational purposes only and is not a substitute for legal advice.
TERRI OLSON founded HR Prescriptions in January 2000 for the sole purpose of helping small and mid-size employers deal with the complexities of managing their human capital. In acting as her clients’ off-site HR Director, her philosophy has been to keep it simple. She only recommends what the client needs to enhance their employees’ performance and protect their business from legal exposure for non-compliance of State and Federal regulations.
After spending most of her career in the corporate world, Terri began her own venture as an independent consultant under the name of HR Prescriptions. As an outsource specialist, her focus is on providing an on- and off-site HR professional for small to mid-sized companies. Her clients have come to trust her to give honest and simplified advice to minimize the risks in managing their most valuable asset…their employees.
Terri offers over 35 years of Human Resources generalist experience in HR management and consulting. With an expertise in employee relations, employment law, communications, policy development and conflict resolution, Terri provides a bottom-line, pro-active approach to the people management aspect of your business, consulting and coaching with a business partner mentality. Her experience with mid to large sized companies in finance, retail, medical and service industries offers real-world insight of what works and doesn’t work in today’s rapidly changing workplace environment.
Terri has presented numerous HR topics in public seminars throughout Orange County and has trained company management and staff employees on topics such as hiring the right people, California-mandated sexual and other unlawful harassment prevention and employee coaching and discipline.
Terri received a Bachelor of Science in Organizational Behavior from the University of San Francisco, graduating with honors. She is a current member of SHRM, the Society of Human Resources Management.