News from Sierra Nevada Memorial Hospital and Hospital Foundation
As businesses open up across the country, a major issue continues to be a stumbling block. Employers are trying to figure out what they can require regarding vaccination of their employees. According to legal experts on California and federal law including Leslie Gielow Jacobs at the University of the Pacific’s McGeorge School of Law, “The bottom line is, employers can require employees to get vaccines. The limitation is that there are several statutes that have specific protection of employees.”
In a national Advisory Board blog, Kimberly Daniel, a partner with the health care firm of Hancock, Daniel & Johnson, suggests five key questions healthcare employers should consider before deciding to mandate the COVID-19 vaccine. These questions provide value for other businesses that may be uncertain of what their options are.
The first is to make sure you are complying with federal and state guidelines. The Equal Employment Opportunity Commission’s (EEOC) position (https://www.eeoc.gov) is that employers may require employees to be vaccinated with some exceptions. These include those who have a protected disability and those who have a religious objective.
While this gives most employers an option to require vaccination before FDA approval, for healthcare facilities, the Center for Disease Control (CDC) still requires masking and the use of other protective equipment even if that facility’s entire staff has been vaccinated.
The next consideration is to determine if a COVID-19 mandate is the best way to achieve your goals. Mandating vaccination rather than encouraging it can put a business at a disadvantage with workforce retention. With the continued science that is evolving and with more education you may find some hesitant staff will choose to get vaccinated as time goes on.
As a business, it is also important to determine how you will manage employees with a legitimate exemption. Make sure you have a well-documented process that complies with the Americans with Disabilities Act (ADA) for disability exemptions and Title VII for religious exemptions.
You need to think about how you will collect proof of vaccination if you choose to mandate it. You need to be careful of intentionally creating legal risk or exposure. According to Daniel, “While you can ask for proof of vaccination, you cannot ask why someone isn’t vaccinated, without creating potential risk.” Right now, employers can require proof of vaccination, but vaccination status is considered confidential medical information so being thoughtful about how you collect, utilize, and store that information is crucial.
Finally, employers should think about how to address workforce retention concerns. One way is to provide reasonable accommodation for those unvaccinated individuals. This may mean wearing a mask, social distancing, or telecommuting.
As with any vaccine mandate, employers should expect pushback from those who do not wish to be vaccinated, especially from those whose reasons do not fall into the legally exempted categories. There are considerable challenges when making these decisions. Making sure you are following legal mandates is something a business should explore fully prior to determining how to proceed.
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User Legend: Moderator Trusted User
Nevada County got some good news on Wednesday.