Questions to Consider When Creating a Vaccination Policy
The following post was created to reflect federal laws on vaccination requirements and policies for private businesses. There are some states, including Alabama, Florida, Montana, and North Dakota, whose state governments have passed laws (sometimes including vaccine requirement bans) that affect the answers given here. For an article on state laws, click here.
Please note: The information provided in this article does not, and is not intended to, constitute legal or financial advice. All information, content, and materials available in this article are for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. We highly recommend that you seek the advice of an attorney rather than relying solely on the information provided herein.
Can I require vaccinations for on-set personnel?
In most states, and in most cases, yes. But there are, of course, considerations.
According to the U.S. Equal Employment Opportunity Commission (EEOC) website article, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (section K), it’s legal for employers to require their employees to be vaccinated. However, the EEOC article also recommends that employers be aware that there may be demographic groups that have lesser access to vaccinations, and if this is indeed the case, requiring employees to be vaccinated may discriminate against these demographic groups.
In an effort to decrease this discrimination, employers are required to make “reasonable accommodations” for three specific groups of people who may not be able to be vaccinated. These three groups are: people with disabilities, people whose religious beliefs prohibit vaccinations, and pregnant women. These “reasonable accommodations” must be granted, and an employer cannot require vaccinations from these employees, unless the employer can prove one of two things:
The unvaccinated status of the employee is a “direct threat” to themselves or other employees.
The accommodations cause “undue hardship” to your company.
You are also required to keep all employee medical records confidential, and separate from other records about said employee.
Reasonable accommodations are anything you can do as an employer to keep an unvaccinated employee and their coworkers safe. These accommodations often look a lot like the COVID safety precautions that we all saw before vaccinations were widely available.
Options include: requiring that all employees wear masks, requiring that unvaccinated workers wear masks, increasing distance between employees, better ventilation, allowing unvaccinated workers to work from home, or asking unvaccinated employees to accept reassignment. In a typical on-set environment, some of these accommodations may not be possible.
Undue hardship: According to the EEOC website article, under Title VII, “undue hardship” is “having more than minimal cost or burden on the employer.” Under the Americans with Disabilities Act (ADA), “undue hardship is defined as an action requiring significant difficulty or expense”
So it depends what the reason for the accommodation request is. If it’s for a religious belief, it falls under Title VII, and it’s pretty easy for an employer to prove ”undue hardship.” If it’s a disability, it’s more complicated.
What laws should I be particularly aware of when implementing vaccine requirements or recommendations for my employees?
There are three Federal laws to be careful of when implementing vaccine requirements or recommendations. They are:
The above titles are linked to the EEOC website descriptions of each, so you can learn more about each of these laws if you would like.
You should also be aware of your state’s laws regarding vaccination requirements.
The above link will take you to a ballotpedia.org article about various state vaccination laws, including a map and a list of laws being considered.
Can I ask employees about their vaccination status?
In most states, and in most cases, yes, so long as you don’t ask follow-up questions. According to an article titled “Can Employers Ask Job Applicants About Vaccination and COVID-19?” on the website of the Society for Human Resource Management, it’s extremely important to avoid questions that could cause an employee to reveal the presence of a disability, as this goes against the Americans with Disabilities Act. Asking for vaccination status alone is a yes or no question. Asking whether a person has been vaccinated does not go against the ADA. However, asking WHY a person is not vaccinated could cause them to feel that they should tell you about a disability that prevented them from getting it, and that DOES go against the ADA.
Can I require PROOF of vaccination for on-set personnel?
In most states and in most cases, yes, so long as you don’t ask follow up questions, similar to asking about vaccination status in the question above. Additionally, you have to keep proof of vaccination separate from an employee’s other records, since the ADA requires that employers maintain the confidentiality of employee medical information.
Can I ask a potential new hire if they are vaccinated?
There are two possible ways that this action may be interpreted. As it is our goal to give you information, not opinions, we’ll tell you about both.
According to the aforementioned SHRM.org article, you can ask about a prospective employee’s vaccination status, but only so long as you don’t force them to reveal information regarding a disability.
However, since this person was not your employee when they were or were not vaccinated, asking them about their vaccination status also might be considered an incentive for voluntary vaccination. And in this case, incentives are only legal so long as they are not “coercive” (according to the aforementioned article on the EEOC website, K17). However, giving someone a job or not might be considered coercive, and therefore it might NOT be ok to require this information.
However, all three laws are ok with offering incentives to someone who voluntarily tells you that they are vaccinated. Therefore, for new employees, if you would like to require vaccination, the safest practice might be to ask potential employees if they are comfortable being on-set with un-masked people and see what information they offer.
Sources:
U.S. Equal Opportunities Commission. (Updated May 28, 2021). What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
U.S. Equal Opportunities Commission (1997) Fact Sheet: Disability Discrimination. (OLC Control No. EEOC-NVTA-0000-28)
https://www.eeoc.gov/laws/guidance/fact-sheet-disability-discrimination
Allen Smith, J.D. (2021, May 24) Can Employers Ask Job Applicants About Vaccination and COVID-19? Society for Human Resource Management.
https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-can-employers-ask-applicants-about-vaccination.aspx#:~:text=The%20Equal%20Employment%20Opportunity%20Commission,t%20overstep%2C%22%20Rashby%20said.
Ballotpedia (2021, July 2) State government policies about proof-of-vaccination (vaccine passport) requirements
https://ballotpedia.org/State_government_policies_about_proof-of-vaccination_(vaccine_passport)_requirements#State_proof-of-vaccination_policies