Are Small Businesses Requiring Employees to Get Vaccinated?

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Putting band aid on after vaccination

A recent U.S. Census Bureau survey shows that the number of small businesses requiring employees to get vaccinated against the coronavirus varies by location and industry, with Puerto Rico and health care employers topping the list.

In Puerto Rico, 19 percent of employers reported that they are requiring workers to get vaccinated, compared to a national average of 4.4 percent, according to responses received between May 31 and June 6 to the Census Bureau's Small Business Pulse Survey.

The numbers drop significantly from there. In California and New York, 7.7 percent of employers are requiring COVID-19 inoculation, followed by New Jersey (6.6 percent), Maryland (5.7 percent) and Oregon (5.6 percent).

Among industries, health care employers were the most likely to report a COVID-19 vaccine mandate (6.6 percent), followed by the accommodation and food services sector and the education sector (both at 6.4 percent).

Small businesses in the following states were least likely to report a mandate:

  • Georgia (2.5 percent).
  • Ohio (2.8 percent).
  • Florida (2.9 percent).
  • Texas (3.1 percent).
  • Michigan (3.7 percent).

Additionally, these industries reported the lowest rates of employer-mandated vaccines: 

  • Administrative, support, waste management and remediation services (2.1 percent).
  • Real estate, rental and leasing (2.6 percent).
  • Transportation and warehousing (2.7 percent).
  • Manufacturing (2.9 percent).
  • Construction (3.1 percent).

Here are some points employers should keep in mind if they require or encourage employees to get vaccinated against the coronavirus.

Don't Ask for Too Much Information

Employers may want to ask workers for proof of their COVID-19 vaccination status now that many federal and state officials have relaxed COVID-19 safety rules for people who are fully vaccinated. But employers should be careful not to ask for more information than is necessary.

Stephen Riga, an attorney with Ogletree Deakins in Indianapolis, explained that employers should avoid making medical inquiries that could run afoul of the Americans with Disabilities Act (ADA). He noted, however, that simply asking for proof of a COVID-19 vaccination is permissible under the ADA because it is not likely to prompt the employee to provide disability-related information.

"There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related," according to the U.S. Equal Employment Opportunity Commission (EEOC).

"So essentially, the EEOC said you can ask about vaccination status," Riga explained. But employers should refrain from asking follow-up questions about why an employee did not receive a vaccination. Such inquiries may elicit disability-related information, according to the EEOC, and would be subject to the ADA's requirement that questions be "job-related and consistent with business necessity." 

If employers ask workers to provide vaccination proof from a pharmacy or health care provider, they "may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA," the EEOC said.

Jason Habinsky, an attorney with Haynes and Boone in New York City, suggested that employers ask only for the bare minimum of supporting documentation, such as a vaccination card or a survey response.

Riga noted that employers should check applicable state law, too, which may differ from federal rules and guidelines. Additionally, if employers are requiring workers to get vaccinated, they will need to consider reasonable accommodations for employees with disability-related or sincerely held religious objections.

Maintain Confidentiality

If employers do require proof of vaccination, they should control access to the information and limit its use, Riga said. He suggested that employers keep the information confidential and provide the level of protection they would for employee medical information, even though the EEOC doesn't consider questions about vaccination status to be medical inquiries. "The information is sensitive, so even from an employee relations standpoint, sharing it is probably not a good practice absent a legitimate business reason."

Moreover, the data could be protected under state law. Employers that are subject to the California Consumer Privacy Act should be aware that collecting such information likely triggers the law's notice requirements. "So employers should ensure they have issued this notice when collecting vaccine-related information," said Hannah Sweiss, an attorney with Fisher Phillips in Woodland Hills, Calif. 

Alexa Miller, an attorney with Faegre Drinker in Florham Park, N.J., said the best way to address employee privacy concerns is to communicate that such records will be strictly confidential and will not be used to make employment decisions.

Many Employers Are Encouraging Vaccination

Research from the Society for Human Resource Management showed that 74 percent of employers planned to recommend that their workers get vaccinated.

"Employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated," said Brett Coburn, an attorney with Alston & Bird in Atlanta. For example, he said, 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.

"Most employers are choosing to inform, educate and encourage their employees to consider the vaccine," observed Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. However, she noted, there may be industries where vaccination is critical and a mandatory approach makes sense.

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

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