What Is The Federal Mandate?
President Biden announced the requirement that companies make certain that their employees are vaccinated or tested regularly for COVID-19. That new regulation is expected to go into effect in the next week.
The Labor Department and OSHA are creating a rule that requires employers with 100 or more workers to verify that their employees are vaccinated or tested regularly.
More than 3,500 organizations, including private businesses, hospitals, schools, and local governments have already put vaccination requirements in place. However, many business owners have questions about the way in which the requirement will be enforced.
New York business owners also have questions.
Can Employers Mandate Vaccinations?
Yes, they can. The EEOC explained that COVID-19 presents a direct threat to health and safety; as a result, an employer can exclude a worker from the workplace if they’ve tested positive. The EEOC notes that employers are permitted to implement vaccination policies as a condition or qualification for employment. But employer also must provide reasonable accommodation for an individual with a disability, who’s susceptible to the vaccine, or has a sincerely held religious belief.
OSHA recommends business owners make the vaccination available to employees at low or no cost and to provide educational materials about vaccines.
What If An Employee Refuses To Comply?
Guidance from the EEOC says that an employee can be terminated if he or she refuses to get a vaccine and doesn’t have a protected reason for which there is no reasonable accommodation. Employers should consult a business attorney to make an analysis before making a termination decision.
Also, note that without a union contract, private businesses can require employees to be vaccinated as a condition of employment and can terminate employees who refuse to get vaccinated.
Must An Employer Allow An Employee To Work From Home?
No. Employers aren’t required to create work-from-home positions when none exist. In instances where a transfer can be made to an existing open remote position, it may a reasonable accommodation. However, a business owners isn’t required to transfer someone to another employee’s detriment.
What If An Employer Can’t Make Reasonable Accommodations For An Employee To Return To Work?
If the employer and the employee are unable to find a solution, the employer should consider granting a leave. Ask your attorney about granting the employee a period of leave until the threat of COVID is gone and to consider leave available under the Family Medical Leave Act.
Can I Charge More For Health Insurance For Unvaccinated Employees?
Delta Air Lines made news when it announced that its unvaccinated employees would be required to pay an additional $200 per month beginning November 1st to remain on the company's health plan. an employer can use this tactic to encourage workers to get vaccinated. It is reasonable to require individuals without a qualified exemption to bear a portion of the health care costs resulting from their refusal to get vaccinated. Think of it akin to the premium surcharge imposed on tobacco users by some companies if they fail to stop smoking, use tobacco-related products, or comply with reasonable alternatives like completing a smoking succession program.
If Vaccinations Are Mandated, Should Employees Be Compensated?
Generally yes. That’s because the time spent by an employee getting a drug test at the direction of the employer is deemed to be time worked under the Fair Labor Standards Act (FLSA). Also, ask your business attorney about New York’s wage and hour regulations, which say that if it’s mandatory, is compensable time. Note that this includes the time for the employee to receive the vaccine, as well as the time the employee spends waiting to get the vaccine and travel time to and from the vaccination location.
All New York employees must receive a paid leave of absence for "a sufficient period of time" no more than four hours per vaccine injection. The leave must be paid at the employee's regular rate of pay, and employers can’t require employees to use other available leave (such as sick leave or vacation time) before providing this leave.
Along The Same Lines, Can An Employer Offer Employees Incentives To Be Vaccinated?
In general, yes, it is okay for employers to offer workers incentives to get vaccinated against COVID-19. This could be a cash payment, gift card, or other rewards. The EEOC guidance says that federal law generally doesn’t limit the size of such incentives. However, employers can take other steps to encourage or facilitation vaccination without violating federal laws. The EEOC says that as far as employer-provided COVID-19 vaccination programs, incentives are legal as long as they aren’t so great as to be coercive. In addition, the incentive size limit – whatever it may be – doesn’t apply if an employer offers an incentive to employees to voluntarily provide documentation that they received COVID-19 vaccination from a community provider.
Plus, employers can also offer time-off for vaccination and to recover from any side effects. The American Rescue Plan Act makes tax credits available to employers to cover the cost of providing paid leave to employees to receive and recover from COVID-19 vaccinations.
What About Unionized Employees?
Employers may have to consider union workers’ collective bargaining agreements for any additional obligations owed to union members as far as vaccinations.
What About in New York City?
New York City has stipulated that anyone age 12 and older must show identification and proof they’ve received at least one dose of a COVID-19 vaccine to participate in the following activities:
Indoor dining. This includes restaurants, catering halls, hotel banquet rooms, bars, nightclubs, cafeterias, coffee shops, fast food restaurants, grocery stores with indoor dining, and other indoor dining spaces;
Indoor fitness. This category includes gyms, fitness centers, fitness classes, pools, dance studios and other indoor fitness studios; and
- Indoor entertainment and certain meeting spaces. These are movie theaters, music and concert venues, museums, aquariums, zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, hotel meeting and event spaces, performing arts theaters, bowling alleys, arcades, pool and billiard halls, recreational game centers, adult entertainment and indoor play areas.
New York City’s requirement is called the “Key to NYC.” It also requires employees working at these locations to be vaccinated.
Can I Ask In An Interview If an Applicant’s Been Vaccinated… If Not When Can I Find Out?
Employers should only ask job applicants about vaccination that are related to the job. If the employer isn’t asking employees if they’ve been vaccinated, it shouldn’t ask applicants, either.
Remember that the Americans with Disabilities Act (ADA) prohibits employers from asking applicants any questions that may reveal the existence of a disability prior to making a job offer. But note that the EEOC has stated that asking employees whether they’ve received the COVID-19 vaccine is not a disability-related inquiry under the ADA. And although inquiring about the vaccination itself will usually be permissible, an employer should ask only follow-up questions that may reveal a disability if they’re job-related and consistent with business necessity.
As a result, a follow-up question about why a person didn't get the vaccination should be reserved until after making a job offer. Questions should be about the health and safety of the workforce
The EEOC says that a mandatory vaccination program is not prohibited under federal anti-discrimination laws but must address potential accommodations as discussed above. But remember that business owners shouldn’t treat a vaccinated employee any differently than someone who’s unvaccinated.
Be sure that your small business is compliance with New York and federal employment laws. There’s much to know and understand. You should work with an experienced New York small business employment attorney. Feel free to reach out to us for help.
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Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.