It’s an amazing accomplishment that a vaccine has been created in under a year. Normally a vaccine can take up to 10 years to develop. A lot of that time is dedicated to trials and testing but during this crisis, many regulations were fast-tracked. Now that multiple vaccines are available, let’s address the elephant in the room. Will employers make vaccines mandatory in the workplace? Let’s get into it.
What Employers Need to Know
The Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA). They’ve declared that administrating the vaccine is not a medical examination for the purposes of the ADA. However, pre-screening vaccination may implicate the ADA clauses. With that being said, if employers are going to require vaccination, the employer must show that the questions are job-related.
In the state of Utah, a bill was proposed to would prohibit businesses from requiring employees to get the vaccine. According to SB0208, “This bill would prohibit an employer from requiring an employee, a prospective employee, or a blood relative of an employee or prospective employee to accept or decline a medical procedure.” Also, employers would be held liable for any and all injuries caused by violating this law. This is a very strong piece of legislation and we’ll be keeping an eye on how this affects other local governments.
What’s the solution?
There are clear benefits to taking the vaccine in the eyes of employers but there are consequences for the operational and cultural functions of a business. SHRM has conducted a survey recently on the reasons why employees choose not to get vaccinated:
In my opinion, these are all valid reasons, however, employers are leaning on educating and providing incentives rather than forcing a vaccine onto their employees. Employers must be careful when offering these incentives to their employees. The EEOC has declared that high-value incentives would violate the ADA or the Genetic Information Nondiscrimination Act (GINA) by persuading employees to participate in wellness activities. What incentives are being offered you ask?
Cash bonuses/stipends
Additional PTO
Gifts (gift cards, vouchers, etc..)
Hiring in a COVID-19 Environment
While we are still waiting to receive guidance from the EEOC on Coronavirus issues, they’ve provided some guidance on some important questions we wanted to share with regards to hiring new talent or applying for new jobs:
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.
May an employer take an applicant’s temperature as a part of a post-offer, pre-employment medical exam?
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.