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Covid 19 Vaccine and your Employer Obligations

Okay. Let me start out this post by saying I KNOW this is a controversial topic. I'm literally squirming in my seat thinking about how to conduct this email in the most unbiased, fact-based way possible. It's honestly a topic I wanted to avoid at all costs, but it's so prolific in my inbox that I can't NOT address it.

As the COVID-19 vaccine becomes more available, as an employer you might be trying to navigate what your obligations are. Maybe employees are asking - are we required to get the vaccine? What happens if we don't want to, or cannot get the vaccine? Do I get paid to get the vaccine? What's next?

All good questions. All HARD questions, too. I've sat in several different trainings by doctors and lawyers over the last few weeks, and here's what we know:

As an employer, can you REQUIRE employees to get the Covid vaccine? Wow. That's a loaded question. The answer really at this point is "not yet". First, vaccines are being distributed on a rolled out schedule based on different risk factors. There are not enough vaccines for everyone to get one, even if everyone wanted it and could take it. Second, at least as of today (who knows what will happen in an hour or two), Oregon maintains 3 exemptions. Medical, religious and philosophical exemptions. OSHA has already said that philosophical exemptions will not be accepted. But as of now, Medical and religious exemptions are accepted. On Medical exemptions - Employees would need to talk with their doctor to determine if the vaccine is safe for them to receive. At this point the guidance is that employers could request a note from the employee's doctor. On Religious exemptions - Okay. We all know that we should not dig into an employee's religious beliefs, because it's a protected class. I'm going to use the age old HR neckache of the employee who is scheduled to work weekends, and comes requesting an accommodation to NOT work Sundays. Guidance for employers has been that if the needs of the business require an employee to work on Sundays, the employee has to work Sundays. It's a good idea to try to work with the employee, maybe agree to not schedule them when they plan to attend church, but ultimately the guidance has been that if the business needs substantiate it, you can require it. Is it going to be the same for a religious exemption against the vaccine? Maybe. So what happens if an employee does come back with an exemption? You can still require unvaccinated employees to wear masks/socially distance/work remotely if possible. Then it's up to the employer to prove whether the unvaccinated employee is a "substantial threat" to the rest of the employees. That's going to be tough though, because if 80% of the rest of your employees receive the vaccine and are "protected", does the 20% still pose a threat? What if an employee refuses to get it? There has not been case law yet to guide employers. Basically, An employer has not terminated an employee, and that employee has not sued an employer yet over this, creating case law, and giving any real direction. My risk mitigation advice? Don't be the one to fire an employee over this and become the case law.

Can you INCENTIVISE employees to get the vaccine?

Yes, but be careful. Incentives should not be substantial. You should not give your employee a $1,000 gift card to get the vaccine. Not only are there tax implications, but you'll probably have other employees barking about being treated unfairly, especially if they have a medical or religious exemption. Could you pay them for their time away from work to get vaccinated? The guidance so far is yes.

Should you host a vaccination clinic onsite?

Once the vaccine is more widely available and clinics start doing worksite vaccination, you may want to host one onsite (a lot of companies do this with flu shots). If you choose to do this, talk with your insurance provider to understand what your liability is and choose someone like a local occupational medicine clinic if you're going to offer it onsite. You want to reduce your risk as much as possible here.

That's essentially what we know now. Similarly to when the pandemic started, everyone is just trying to "figure it out". I would definitely encourage you though to have sympathy with your employees, as they are going to be all over the spectrum when it comes to the vaccination. You'll have some employees who can't wait to get it, and some who are going to be terrified or have their own reasons against why they will not get it. Have grace with people.

All that to say, if you want to talk more about your strategy for vaccine rollout (or lack thereof), please don't hesitate to reach out. It's possibly my favorite and least favorite topic all at the same time! :) Or, if you want to read about it from BOLI themselves, enjoy.


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