Companies Requiring Employees To Get COVID Vaccine 

Employers wanting to require workers to get a COVID-19 vaccination should be prepared to respond to workers’ concerns and make reasonable accommodations under federal and state law.

Sixty percent of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. However, 28 percent of respondents said they are willing to lose their jobs if their employer requires the COVID-19 vaccine.

If the employer has made the vaccine mandatory, it needs to be sure that it is ready to terminate or otherwise address employees who refuse and who are not entitled to a reasonable accommodation.”

Employers that require vaccinations may face discrimination claims if they deny accommodation requests based on medical or religious objections.

The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.

Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.

Employers that mandate vaccines will have more issues to consider beyond providing reasonable accommodations. For instance, can an employer be held liable if a worker has an adverse reaction to the vaccine?

A severe allergic reaction to the vaccination is possible but rare, according to the U.S. Centers for Disease Control and Prevention (CDC).

If an employer mandates vaccines, there is likely coverage for injury or illness under the employer’s workers’ compensation policy, but employers should check with their carriers.

Employers must also be careful about collecting medical information. “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof,” according to the CDC.

Employers that plan to require employees to get a vaccine should develop a written policy.

If a significant portion of the workforce refuses to comply with a vaccine mandate, the employer will be put in the very difficult position of either adhering to the mandate and terminating the employees or deviating from the mandate for certain employees. This can increase the risk of discrimination claims.

“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to:

  • Develop vaccination education campaigns.
  • Make obtaining the vaccine as easy as possible for employees.
  • Cover any costs that might be associated with getting the vaccine.
  • Provide incentives to employees who get vaccinated.
  • Provide paid time off for employees to get the vaccine and recover from any potential side effects.

Regardless of whether the policy is for mandatory or voluntary vaccinations, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.

If you have questions about this or other critical HR issues, we are here to help! Contact us today to get the support you need.

Every company, no matter the industry, must maintain employee files and conduct internal audits to ensure completeness as often as feasible. Don’t be the employer that has to learn the hard way how valuable maintaining appropriate employee documentation can be.

Separation of Information

As a rule, keep all documentation relative to the employees’ job, in a separate, labeled file with a predetermined naming convention for easy access. Often there is a need to have separate file(s) for an employee based on the content of the records you are keeping. They may fall into the following categories:

Confidential File (separate file)

This file may be started when the employee is first hired. This includes any background checks or drug test results, date of birth, Social Security number, and any self-identifying information asked at the time of hire. Human Resources is often the only department with access to this file. This file may also be used for workplace investigations should they occur (it should be noted any disciplinary action, training, or termination documentation resulting from the investigation would be kept in the Personnel File). Managers and Supervisors do not need this information when reviewing or assessing an employee’s performance or history and thus should have no access to this file.

Employee Personnel File (separate file)

This file will often hold the bulk of the records for the employee’s tenure with the company. All documentation regarding the employee’s performance should be held within this file. Documentation may include the following:

  • Disciplinary actions or notices
  • Acknowledgments of any company policies
  • Compensation changes
  • Improvement suggestions by the management team
  • Annual reviews and performance evaluations
  • Job description and role in the company
  • Termination records
  • Exit interviews

This file can play a vital role when reviewing past performance relative to an upcoming promotion or movement within the company. Managers may ask to review this file to help with the decision-making process as it provides an all-encompassing review of an employee’s KSA’s and history with the company. This file may also hold outside information such as education and training certificates, or recommendations and accolades from clients or customers.

Medical File (separate file)

Not every employee may have a medical file, but if you do have medical information for your employee, it must be retained in a separate file. Here you would hold any medical documentation or communications relative to an employee’s medical requests or leave of absence. The Family Medical Leave Act (FMLA), American with Disabilities Act (ADA), Doctors notes requested for any extended leave approval, and even Workers Compensation claims should be kept separate from the employees’ general personnel file. Remember this may include Human Resources notes relative to the interactive process or emails with an employee request for a specific accommodation. The employees medical record, once provided, must be kept in this file that would not be accessible to the employee’s manager.

I-9 Form (separate file)

Lastly, there is the employee I-9 Form which must be kept separate from all other records. This is maintained a bit differently as the company must house these records all in one spot. If you are using paper records, store all I-9 Forms alphabetically in a binder kept in a secure location. If you maintain records electronically, they must be stored under one file in the same manner as you would the binder. These records are stored differently for your protection in the case you are audited by immigration or DHS. Having all I-9 Forms separately stored will keep your company’s liability lower as there will be less exposure to your employee files.

The List Goes On

There can be other files to maintain in addition to the ones mentioned above depending on the systems you use for Payroll and Benefits. If you are maintaining an HRIS system of any kind these documents may be preserved in an automated payroll system (ADP, Prism, Ultipro) or kept in a spreadsheet or a tool such as Quickbooks.

Paper vs. Electronic Storage

Employee Records may be kept in a paper or electronic format. Both have their own benefits however the trend is quickly turning toward storing files electronically for remote access and continuity. Most companies follow the guidelines set forth by the US. Department of Labor regarding their oversite with ERISA (Employee Retirement Income Security). The decision to incorporate these guidelines to cover all your electronic record keeping would be up to the company and their specific policy. Key aspects to keep in mind when storing these records pertain to the privacy and safety of employee information. A few good questions to ask would be the following:

  • Who would have access to these records and what protections would you put in place to safeguard the confidentiality of your employee’s files?
  • Will you have firewalls and a multi-authentication system in place to protect against outside forces?
  • How will you ensure the backup and record retention policy required?

This information must be outlined in a company’s record retention policy that would provide consistency in the maintenance and updating of these files.

Employee Access

There may come a time when an employee asks to see their Personnel File. When this happens, you should first look to see what your state mandates you provide and in what format you must comply. States often update these personnel file laws regularly so make sure you are in compliance and ready when the questions arise. The following vary from state to state:

  • Does the employee request have to be in writing?
  • Can the company create policy’s requiring the requests are in writing?
  • How many times can an employee review their file, and is there a timeframe this would reset?
  • What is the time limit to comply with this request?
  • Can the employee make copies of their file or review without oversite?
Retention

Make sure you know how long you are required to hold on to employee files after a separation occurs. There are specific federal employment laws that outline each type of record and how long you must maintain them. It is not advisable to hold on to records any longer than necessary as these retained records could be requested in a formal lawsuit.

Maintaining all these employee records can be time consuming and frustrating, especially during times of growth. Having an organized system and a policy in place to ensure continuity will be vital.