With COVID-19 vaccinations well underway, but infection numbers rising in many states, employers are navigating a complex reopening world. It’s not easy to keep up with the evolving legislation or CDC guidelines, especially when you’re trying to keep your business afloat. Our HR experts are here to help. Read on for their answers to a few of today’s most frequently asked questions from business owners just like you.
As an employer, can we require employees to get a COVID-19 vaccine?
While recent EEOC guidance implies that they expect many employers to require a vaccine, there are already several states where bills are being introduced to prevent employment discrimination against those who refuse a vaccine (MN, NJ, SC), and it’s likely bills like this will be introduced in more states soon. Additionally, we anticipate that there will be state and federal lawsuits from individuals, which may result in rulings that impact the law in individual states or entire circuits (for instance, the Ninth Circuit, which covers AL, AR, CA, HI, ID, MT, NV, OR, WA, or the Eleventh Circuit, which covers AL, FL, GA).
Given the legal risks here, and since many Americans will not have access to a vaccine until Spring or even Summer, we believe it would be prudent for most employers to wait to see how things play out in courts and legislatures across the country before deciding to require vaccinations.
Can we ask employees for proof of COVID-19 vaccination?
You can ask employees for proof that they’ve received the COVID-19 vaccine, but you need to be careful about how you ask for it and what you do with the information.
You should ask employees to provide proof that only includes their name, the date of vaccine (and whether first or second dose, if applicable), and, if necessary, their provider’s name. Asking for anything more than that could turn a simple request into a disability-related inquiry under the Americans with Disabilities Act (ADA) and should therefore be avoided.
You should also ensure that this information is kept confidential, along with any explanations about why an employee is not vaccinated. We recommend against asking employees why they are not vaccinated, but if you are mandating vaccines, this will likely come up when one or more employees indicate that they need an exception to your policy.
Finally, make sure that you don’t discriminate against employees who aren’t vaccinated because of their religious beliefs or disabilities. Title VII of the Civil Rights Act protects these characteristics and requires that you make reasonable accommodations for employees whose religious beliefs or disabilities prevent them from complying with your policies.
We recently hired an older individual whose start date is next Monday, but we would like to push it back because we’ve just had an employee test positive for COVID-19. Would this be allowed? We will be testing everyone in the workplace, but I know older employees may be at higher risk.
You will need to tread carefully here. Pushing back an employee’s start date because of their age would be a clear case of age discrimination, even if you’re operating with the best of intentions. Age discrimination is illegal under the federal Age Discrimination in Employment Act (ADEA), and a similar state law may apply as well. It’s also generally inadvisable to make assumptions about employees based on their age as these assumptions can lead you to treat employees differently based on their age, risking the loss of trust, hurt feelings, and discrimination claims.
What you can do is explain the situation to any new hires who haven’t started yet and ask them what they’d like to do.
An employee says that the stress of the job is affecting their mental health. How should we handle this?
This employee may just need to talk through their concerns and get your help prioritizing or delegating. They may, for example, feel like every single thing on their to-do list is life-or-death by Friday at close of business, when that’s not really the case. Some manager guidance can go a long way, especially for your employees who are usually self-directed.
On the other hand, the stress and mental health effects the employee describes may rise to the level of a disability under the Americans with Disabilities Act (ADA). In this case, we would recommend beginning the interactive process to determine what, if anything, can be done to accommodate them so that the essential functions of the job get done to your standards and the employee is able to keep working. As part of this conversation, you can request a doctor’s note to substantiate the disability.
If you have more general concerns about the effects of stress in your workplace, you might consider ways to help your employees reduce and manage their stress. Tried and true methods include offering health benefits so employees can access health care professionals and paid time off so they can take a day here and there to rest and recharge. Simply encouraging employees to support one another and allowing them breaks during the day can also be a great help.
Can we terminate an employee who is unable to work because they need to care for a child but has used up their leave under the FFCRA?
Assuming that no other leave laws apply, termination is an option. That said, you may instead want to consider offering the employee an unpaid personal leave of absence or revisiting whether a flexible or part-time work schedule would be better than losing the employee entirely. Recruiting, hiring, and training are all expensive undertakings (generally from 20 to 200 percent of their yearly salary). Terminating an employee without considering other arrangements might also have a negative impact on employee morale and your reputation as an employer. If there’s a way to keep an employee around — even if they need some time off — it would likely be better for your bottom line.
If you do decide to terminate an employee who is out on leave, make sure you are consistent in that response going forward. If you are flexible with some employees while terminating others, you will open yourself up to claims of discrimination.
Please note that legislation and COVID-19 guidelines are constantly changing. You should always consult an HR professional if you have questions about a specific situation. For access to other HR resources and live support learn more about our HR Support Center.
HR Support Center Experts:
Kara, JD, SPHR: Kara practiced employment law for five years and worked in Human Resources for several years prior to that. As an attorney, she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.
Daniel, SHRM-CP: Daniel has over 12 years of experience in the communications, government relations, political advocacy, and customer service fields. He has a BS in Journalism and Communications. He has run a small business of his own and sat on the Board of Directors of several local non-profits.
Kyle, PHR: Kyle is a professional author, editor, and researcher specializing in workplace culture, retention strategies, and employee engagement. He has previously worked with book publishers, educational institutions, magazines, news and opinion websites, nationally-known business leaders, and non-profit organizations. He has a BA in English, an MA in philosophy, and a PHR certification.
Rachel, SHRM-SCP: Rachel has a background as an HR Generalist in a variety of industries. After completing a B.A. in Psychology, she began her HR background in employee relations, staffing and payroll.
Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.