5 Things Your Clients Need to Know About Vaccine Regulations and Employee Testing

Last month, President Joe Biden announced two executive orders mandating vaccinations for both federal government and private-sector employers with over 100 employees. This affects an estimated two-thirds of American workers, and employers will have a specific window of time in which to comply. Employers that are not in compliance with the workplace vaccine requirements could face up to a $14,000 fine per violation. This mandate also includes providing paid time off to allow employees time to receive the vaccine and to recover.

As workplace mandates regarding vaccines and testing continue to roll out, it’s vital that your employer clients understand what they legally can and can’t do to be compliant while continuing to manage their business and maintain a safe workplace for employees and customers. While not an all-inclusive list, the following are the latest key developments regarding the COVID-19 vaccine mandate that employers need to be aware of moving forward:

Federal Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. However, for employees who because of a disability or religious belief, practice or observance have chosen not to get the vaccine, the employer will be required to provide reasonable accommodation provisions. According to the Americans with Disability Act (ADA), some examples of reasonable accommodations for unvaccinated workers include wearing a face mask, social distancing from co-workers or nonemployees, working a modified shift, working remotely, periodic testing for COVID-19, and even accepting a reassignment.

📝 Take note! According to the ADA, employers that can demonstrate that an accommodation would impose an undue hardship on the business’s operations will have no responsibility to make said accommodations. An undue hardship can include monetary expenses as well as issues relating to an increase in workplace safety and those that will negatively impact the business’s employee benefits.

An employer can legally administer a COVID-19 test to an employee. Employers are permitted to test employees when evaluating the feasibility of an employee’s initial or continued presence in the workplace. However, the ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”

📝 Take note! An employer is allowed to administer a COVID-19 test to employees before initially permitting them to enter the workplace as well as periodically determining whether their presence in the workplace poses a direct threat to others. 

The ADA permits an employer to bar employees from the physical workplace if they refuse to answer questions related to having COVID-19 or symptoms or refuse to have their temperature checked. In some cases, employers may find that workers are reluctant to provide medical information simply because they fear that their employer may convey this personal medical information throughout the workplace. Of course, the ADA prohibits such broad disclosures, as they are a violation of privacy laws.

📝 Take note! Employers have the right to inquire as to the reason(s) for a refusal. In many situations, employers can assure employees that the only reason for the inquiry is to protect everyone in the workplace and that the practice is consistent with Centers for Disease Control and Prevention (CDC) health screening recommendations.

Employers can advocate for employees and their family members to become vaccinated without violating the EEO laws, the ADA and the Genetic Information Nondiscrimination Act (GINA). According to the Equal Employment Opportunity Commission (EEOC), employers are allowed to provide employees and their family members with educational information about the COVID-19 vaccine and its benefits and to address questions and concerns.

📝 Take note! Under the ADA and in certain circumstances,employers may offer incentives to employees who receive COVID-19 vaccines and voluntarily provide credible documentation. However, the employer must keep vaccination status and associated information of all employees confidential.

Employers are legally permitted to ask all employees who physically enter the workplace whether they have been diagnosed with or tested for COVID-19. In certain circumstances, an employer may exclude from the workplace employees who have COVID-19 or have symptoms associated with COVID-19, as they pose a threat to the health and safety of others. Employers that have employees who are working remotely and are not in physical contact with co-workers, vendors or customers are not generally permitted to ask questions as to whether a worker has been diagnosed with COVID-19 or is having symptoms. GINA prohibits employers from asking employees medical questions about their family members. However, the act does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19. A current list of symptoms can be found on the CDC website.

📝 Take note! The ADA gives employers permission to request that an employee who becomes ill with symptoms of COVID-19 immediately leave the workplace.

Conclusion

The EEOC continues to encourage COVID-19 vaccinations but stresses the importance of businesses complying with the ADA and Title VII of the Civil Rights Act of 1964 as well as state and workplace laws. Brokers and their employer clients should defer to the aforementioned resources for detailed information and updates to recent mandates.

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