Should your organization require that all staff be vaccinated? Or that employees either get vaccinated or get tested regularly for COVID-19?

No matter what your organization chooses, here are important things to know and consider.

Federal and State Laws

On September 9, 2021, President Biden ramped up measures aimed at slowing the spread of COVID-19, including a plan to require that all organizations with 100 or more employees will require vaccinations or weekly negative test results. That plan, however, is not yet law.

Even so, federal employees, including the military, will soon be subject to mandatory vaccination rules. Many states require some or all healthcare workers to be vaccinated, including California, New Jersey, Washington, New York, New Mexico, Rhode Island, Maryland, Illinois, Colorado, and Washington D.C. Many school districts—including New York City’s, one of the largest in the country—are requiring all teachers and staff to be fully vaccinated. Chances are that other states will follow.

On the opposite end of the spectrum, governors in Texas and Florida are prohibiting employers in their states from implementing vaccine mandates.

Some of these new regulations will probably be subject to legal challenges, so this matter is far from settled.

HIPAA Rules For Employers

Organizations in areas where vaccination is, or soon will be, mandatory should understand what they can and can’t ask employees.

Here is the most recent guidance about how Health Insurance Portability and Accountability Act (HIPAA) privacy rules apply to the COVID-19 vaccine. HIPAA rules do not prevent any individual, employer, or business from asking whether someone has received a vaccine, including the COVID-19 vaccine. HIPAA privacy rules only apply to how and when covered entities, such as health plans and healthcare providers, are permitted to use and disclose protected health information.

Employers may ask employees for a copy of their vaccine card or ask employees to sign an attestation stating that they are fully vaccinated, but they must keep any documentation or other confirmation of vaccination status confidential. In addition, employers should inform employees that this information will be kept confidential and that only a limited number of individuals will have access to it.

Pros and Cons of Vaccine Mandates

There are plusses and minuses to employee vaccine mandates.

The upsides are obvious: a safer workplace and more opportunities to bring remote workers back to the workplace. A mandatory vaccination policy may also allow employers to avoid certain COVID-related risks and liabilities.

However, many people are unwilling or hesitant to receive the vaccine, and vaccination has become an emotional and contentious issue. A mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Employers with a vaccine-hesitant workforce may lose a considerable number of employees and face staffing issues.

Before implementing a mandatory vaccination policy, give employees as much lead time as possible to digest the information and to comply with the mandate (as well as time to decide if they want to refuse vaccination and give notice of their resignation). Be very clear about dates and the consequences for not getting vaccinated.

Adopt logical, written procedures for determining employees’ vaccination status, and make sure the procedures are fair and strictly followed for everyone. Develop a plan for handling requests for medical or religious accommodation, and have a system in place for tracking employees’ vaccination status and COVID-19 testing (if that’s an option).

Employee Refusal and Mask Mandates

In most states, employees who are fired for violating a company policy do not qualify for unemployment because it is considered misconduct. So if a company has a vaccination policy and the consequences for violating that policy are clear, the employee may be ineligible for such benefits unless the worker was exempt from the policy for medical or religious reasons.

Employers can also mandate masks or other safeguards as part of the same policy.

The only exception is for an employee who has a disability that interferes with the ability to wear a face covering. That employee may request a reasonable accommodation under the Americans with Disabilities Act (ADA). The employee and employer should discuss the employee’s specific circumstances and any available alternatives to the face-covering requirement. Employers should also check with their state and local face-covering requirements.

The Lindenberger Group can help organizations design and manage mandatory vaccination policies. For more information or to discuss your HR needs, please contact us at 609-730-1049 or send us an email.