Loosening shelter-in-place restrictions are causing employers to consider ways to keep their employees safe. If you’re thinking about returning your remote workforce to your workplace, you may be considering additional measures to keep your employees safe.

According to recent guidance from both the EEOC (Equal Employment Opportunity Commission) and the DFEH (Department of Fair Employment and Housing) employers may mandate that its employees receive the vaccine as a condition of employment with some restrictions so long as the employer:

  • Does not discriminate against or harass employees into getting the vaccine based on protected characteristic, and
  • Considers potential reasonable accommodations related to disability or religious beliefs or practices are implemented, and
  • Prevents retaliation against employees for requesting an accommodation.

Note that an employer’s evaluation of whether a requested accommodation is reasonable must be include the interactive process with the employee making the request.

An employer does not have to accommodate an employee’s objection to be vaccinated based on their mistrust that the vaccine is unsafe, or for political reasons. The request for accommodation may be considered only if it is based on a disability or religious belief.

Per the DFEH, an employer who implements a mandatory vaccination program may request limited medical information relevant to the vaccine. This includes “questions, such as on a pre-vaccination screening questionnaire, that could elicit information about a disability” so long as the questions are “job-related and consistent with business necessity.” Any record of vaccination for employees or applicants must be maintained as a confidential medical record. Employers may also require that the employee or applicant submit proof of vaccination. Proof of vaccination could include disability-related medical information. If so, instruct employees and applicants to omit all other medical information from their vaccination record.

If you mandate vaccines you must be prepared to terminate employees who refuse to be vaccinated and are not eligible for a reasonable accommodation. Research shows that a considerable number of people still mistrust and do not wish to receive a COVID-19 vaccine.

Providing your teams with up-to-date information on vaccinations and clearly communicating that they will be compensated for time off to receive the vaccine or to recover from side effects will go a long way in building employee confidence. You may be able to place an employee on temporary unpaid leave of absence pending their decision. This gives the employee time to consider the information you provide to make an informed decision. It also gives you time to consult with legal counsel to ensure your next step does not create unnecessary liability for your company.

A fully vaccinated workforce does not mean an employer may loosen up on COVID-19-related safety measures.  Update your Injury and Illness Prevention Program and COVID-19 Prevention Program to reflect the requirement for vaccination but also continue to implement the safety guidelines built into those programs. A fully, or mostly vaccinated workforce may not prevent employees from contracting COVID-19. Review your current leave of absence policies to ensure they reflect recent employment regulations.

If you need help with finding accurate information about the vaccine or madating the vaccine, we are here for you. Be in touch by scheduling your free consultation with me on our website.