Legal Eagle -Employer’s Guide

Straight-forward legal tips for Military and Veteran Business Owners

By Kelly Bagla, Esq.

Employer’s Guide to COVID-19 Vaccination, Verifications, Exemptions

The world has been turned on its axis over the last 17 or so months as a result of the COVID-19 pandemic. Small businesses have been hit particularly hard and will continue to be harmed with the new surges in infections caused by the delta variant as employers face pressing questions about worker vaccination requirements. I discuss some of these questions below addressing vaccination policies, vaccine exemptions, and vaccine verifications.

Can an employer require employees be vaccinated before working in person?

Recently, the Equal Employment Opportunity Commission issued guidance stating that implementing mandatory COVID vaccination policies is permissible, as long as the employer does not violate federal discrimination rules around disability and religion.

Is it legal to fire employees because they refuse to get vaccinated or show proof of vaccination?

If an employee has a valid “Vaccine Exemption Form” on file, the employer should consult an attorney before firing the employee for refusing to get vaccinated. Depending on the situation, it could violate state and federal laws prohibiting discrimination. Requesting proof of vaccination, in general, is legal, but employers need to be mindful of the employee’s privacy and not to collect any other unnecessary medical information.

How can employers screen employees for COVID-19 symptoms?

Employers can screen employees for COVID-19 symptoms before they enter the workplace by: • Asking if they have any COVID-19 symptoms, such as cough, fever, shortness of breath. • Asking if they have been around anyone with COVID-19 symptoms. • Taking their temperatures before they enter the workplace.

Can employers require employees get tested for COVID-19?

Yes, the CDC and Equal Employment Opportunity Commission have extensive guidelines on how businesses can monitor employees for symptoms and test employees. Employers can only test employees by a viral test that shows whether a person is currently infected.

Can employees refuse to come back to work for fear of infection?

The Occupational Safety and Health Act protects employees refusing to return to the workplace if they reasonably believe they are in “imminent danger” of contracting the virus.

To take advantage of this protection, employees cannot be generally scared of getting the COVID virus but must specifically prove this fear. If there is no imminent danger, and the employee still refuses to return to work that employee is not entitle to pay.

Part of your employee communication should consist of a written workplace vaccination policy, whether you decide to mandate vaccinations or not. Use clear and direct language about vaccination requirements, exemptions, and reasonable accommodations, such as social distancing, working remotely, or using paid leave.

Also, lay out the consequences of not following the policies, such as termination of employment. However, when drafting your policies be sure to consider all applicable federal and state laws.

How should employers evaluate vaccine exemptions?

As a small business employer, if an employee tells you that they cannot receive the vaccination because of a disability or religious belief, you should first determine if your business is subject to the requirements of the ADA and Title VII, and if it is, follow the legal requirements and guidance of both.

Can an employer require verification of vaccination due to COVID-19 concerns?

Employers can ask if employees have been vaccinated, even requiring proof of vaccination through selfattestation or a COVID-19 vaccination record card or passport according to the Equal Employment Opportunity Commission’s recent guidance.

This topic is hotly debated and many employers are concerned about privacy issues. Limit the questions to COVID-19 related concerns and not to ask questions about the employee’s health in general.

For more information on how to legally start and grow your business please visit my website at

www.BaglaLaw.com

Disclaimer: This information is made available by Bagla Law Firm, APC for educational purposes only as well as to give you general information and a general understanding of the law, and not to provide specific legal advice. This information should not be used as a substitute for competent legal advice from a licensed professional attorney in your state

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