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To Vaccinate or Not to Vaccinate?

“To vaccinate or not to vaccinate? That is the question…”

There is so much conflicting information circulating these days about whether or not small businesses should mandate vaccines for their employees.

Is asking an employee about vaccination status a violation of HIPPA?

Is this an intrusion on their privacy that might make them resign?

Are they going to quit if everyone doesn’t get vaccinated?

Do I need to provide time off if they get ill from a vaccination?

Where does it stop and how does a small business owner know what to do? Unfortunately, there are no easy answers because every workplace is different, and the government regulations are unclear and changing almost daily, but hopefully the general guidelines below will assist you in determining what is best in your situation.

We recently had a team discussion on this topic if you prefer to watch or listen, that video can be found here or the recap is as follows:

1. Is it legal to require vaccination?

It has generally been accepted that requiring vaccines is legal because the Equal Employment Opportunity Commission (EEOC) issued guidance saying that employers are permitted to do so. However, there is some concern about possible litigation from employees (one case has already been filed) who object to vaccination being mandatory. In a recent article from SHRM (Society for Human Resources Management) it states, “vaccine mandates may still be risky for employers. The viability of such claims will depend on applicable state laws regarding a potential public policy exception to at-will employment. The regulatory framework is still unclear … noting that a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine.”

2. If my company decides to require mandatory vaccination, are there any exceptions?

Yes. Even if you require COVID-19 vaccinations, an employee has the legal right to object for medical or religious reasons.

3. “Just because you can, doesn’t mean you should.”

As an employer, you may want to really consider the implications of requiring employees to be vaccinated. While this may provide some relief to employees concerned about contracting COVID-19 from a co-worker, what are you going to do if one (or more) of your workers refuses to vaccinate? Are you prepared to terminate that individual’s employment? Can you make reasonable accommodation for that person to work from home?

4. What option do I have to making the COVID-19 vaccine mandatory?

Instead of making the vaccine mandatory, some companies are hoping that positive encouragement and some incentives will help. While it’s not best to offer huge bonuses or anything crazy, companies are motivating their employees by providing paid time off to take/recover from the vaccine, gift cards to local restaurants, and small similar gestures.

So back to our original question: “To vaccinate or not to vaccinate?” Whatever you decide is going to make some employees happy and others very unhappy. It is a choice that should be made with much care and consideration for your entire workforce.

As of May 28, 2021 and prior to the publishing of our team discussion video, the EEOC issued new guidance around vaccines in the workplace, incentives, and reasonable accommodations for unvaccinated employees due to medical or religious requests. That guidance can be found here.

(Hint: Scroll all the way down to K)

It can be cumbersome and confusing. But you’re not alone. We are here to help and talk through what all of this means for your small business and the best approach for the workforce.

Rachel Vradenburgh

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