As ASE has written about previously, a vaccine mandate is allowed under law, except in jurisdictions which do not allow it, e.g. Montana. In addition, vaccine mandates in a union environment is still under question as to whether it has to be negotiated. But employers are not flocking to this mandate. In a recent ASE survey of 143 Michigan organizations, a majority of those surveyed (74.1%) continue to encourage vaccinations, but not mandate them. Yet, the Delta variant as well as the possible emergence of the Lambda variant is making employers think differently about their workforce.
First, employers are delaying return to work again. A number of organizations, including Facebook, GM, Ford, and ASE have delayed reopening the offices.
Second, even nonhealthcare employers are pushing for mandatory vaccinations or employees. Such employers include Cisco, Delta Airlines, Citigroup, Facebook, Ford (for those doing international travel), Microsoft, and Walmart (at headquarters). In fact, even if employers are not mandating vaccinations for their workforce, they may be for their new hires. Ladders, Inc. researchers conducted a comprehensive review of all 3.8 million high-paying career job postings in the U.S. & Canada over the past two years. The research revealed a surge of more than 5,000% in job posts listing vaccination requirements since January. Employers who require vaccines do not have to hire if the applicant is not vaccinated.
The Department of Justice and EEOC have both stated that mandating vaccinations by employers is legal and does not violate the law. However, employers must consider accommodations when an employee has an ADA issue or a sincerely held religious belief. Note that a sincerely held religious belief is not “I don’t want to take the vaccine because of my religion,” but it is “I believe . . . and taking the vaccine violates this belief.” Any employee who uses the first statement does not qualify for an exemption, because the employer can not determine what the sincerely held belief is.
Can employers require proof of vaccination?
So, the next question becomes – can employers require proof of vaccination? The answer is yes. HIPAA rules do not apply to employers or employment records. Employees have to decide whether to provide that information to their employer. Employers need to determine their policies when an employee refuses, especially since this is a time of labor shortages. This current environment is likely a major reason that employers are not mandating vaccines.
When does HIPAA apply?
HIPAA applies if you seek medical information directly from the employee’s medical provider. An employer cannot ask a medical professional for an employee’s medical records or information about an employee’s health, without permission from the employee. The employer needs to have a release from the employee in order for the medical provider to release medical information to you.
Can employers treat unvaccinated employees differently when no mandate is in place?
As employers can refuse to hire and can terminate employees who violate a vaccination mandate, can employers discriminate between vaccinated and unvaccinated if there is no policy requiring vaccinations? As a general rule, in this situation, the vaccination status should not be used against the applicant or employee for any employment decision. If employers are thinking of treating unvaccinated differently than their vaccinated employees, they need to discuss this with legal counsel before any action is taken. A mask mandate only for unvaccinated may be an issue. A mask mandate regardless of vaccination should not be. And state and local laws may impact the employment decisions.
What should employers do when customers require knowledge of vaccination status for those coming to their site?
Finally, what should employers do when customers require knowledge of vaccination status for those coming to their site? To begin with, can an employer release vaccination status to a third party (e.g., customer) with or without the consent of the employee? The employer should, before responding to a customer request, inform the employee that they are required to respond to the customer demands. If the employer doesn’t have that information and the employee balks on providing that status, it becomes an employee relations issue. On the other hand, if the employer did not have to respond any request, but the employee was to go to the customer site who then asks for their vaccination status, the employee would be required to respond. The employee cannot decline the customer that knowledge. Next, if the customer asks the vaccination question, they need to keep the information confidential like any other medical inquiry, regardless of who answers. The employer sending an employee over should confirm that fact.
Note, when the customer requests proof of a vaccination, it could lead to legal liability. “If someone is denied access to a public space on the basis of not having proof of vaccine, and the reason they didn’t get vaccinated is because they have a disability that prevents them from being vaccinated, we’re potentially encountering a situation where someone is being excluded from a public place because of their disability," said Erin Jackson of Jackson LLP. Therefore, employers need to be cautious of ramifications of the policies and the asks. To be safe, work the policies, procedures, and process out with legal counsel before implementing.
Source: CDC, 5Chicago 3/25/21