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While federal COVID vaccine mandates are tied up in the courts, many businesses are left wondering how to update their company’s vaccine policies as they head into 2022.
“A lot of business owners feel like they’re left in limbo,” says Christopher Santomassimo, founding partner at Santomassimo Davis LLP | Outside General Counsel Solutions®, a New Jersey-based firm with offices in New Jersey, Philadelphia, and New York.
Santomassimo noted that recently, the Biden administration was forced to halt enforcement of its recently announced vaccine and testing requirements for businesses with 100 or more employees. The U.S. Court of Appeals for the 5th Circuit in New Orleans ordered the administration to refrain from enforcing the requirements until further notice, citing “serious constitutional concerns.” The U.S. Supreme Court is scheduled to hold hearings on an emergent basis just after the New Year holiday.
With federal mandates up in the air, Santomassimo says “there’s a lot of mixed messaging” from the Occupational Safety and Health Administration (OSHA) and other regulatory industries, leaving many executives scratching their heads over how to handle employee vaccinations in the workplace. “Everyone’s feeling a bit of trepidation right now,” he says.
Here are three questions executives should be asking themselves to get a better handle on their vaccination policies:
Who’s Vaccinated, Who’s Not?
Before you create or revise your vaccine policy, it’s essential to poll your workforce to find out who’s vaccinated and who isn’t. If employees indicate they are vaccinated, ask them to submit proof. If they’re not vaccinated, find out if they plan to do so. “You need to know where you stand,” Santomassimo says. Are 90 percent of your workers already vaccinated, or just 10 percent? “What you find out can help guide your vaccination policy moving forward,” he says.
One note of caution: While the Equal Employment Opportunity Commission’s recent update noted that employees can ask for vaccination status and proof of vaccination, they should not ask why someone isn’t vaccinated.
Encourage or Mandate?
Once you’ve got a handle on the vaccination rate within the ranks, you’ll need to decide whether you’ll strongly encourage employees to get vaccinated or require them to do so. “For most employers, this is no easy decision,” says Santomassimo. On one hand, employers have the responsibility to create the safest possible workplace; on another, some executives might fear that, in a tight job market, vaccine-hesitant employees might jump ship if there were to be a mandate.
Recent statistics show employers are mixed on the approach they’re taking: A study of corporate executives by ASU/Rockefeller Foundation revealed that 44% of companies will require all employees to get vaccinated, 31% will just encourage vaccinations and 14% will require some employees to get vaccinated.
Besides taking your employees’ temperature on the issue, Santomassimo recommends checking in with customers to determine their requirements. “Have a discussion with key clients to understand what’s expected,” Santomassimo says. For instance, do they require that all your employees with whom they come into contact be vaccinated? If so, will you meet their needs by requiring all employees to be vaccinated, or shuffling around employees’ responsibilities so only vaccinated members of your staff are interacting with select clients? “These are all things you’re going to need to figure out,” Santomassimo says.
As you develop a vaccine policy, be sure to involve your legal partner, who can make sure your policies are in line with federal requirements. For example, Outside General Counsel Solutions® advises its clients on guidance for federal contractors and union facilities—both entities that have specific rules related to employer-mandated vaccines. A mandatory vaccination policy must allow for exemptions based on disabilities (including medical issues) and sincerely-held religious beliefs, unless an accommodation would place undue burdens on your business.
How Can I Protect Employees?
Regardless of whether you’ll require or simply encourage employees to get vaccinated, it’s critical that you continue to follow OSHA guidelines focused on reducing the spread of the virus in the workplace. Work with your legal partner to determine various scenarios related to employee vaccinations, such as how you’ll handle the co-mingling of vaccinated and unvaccinated employees and how you’ll address situations when an employee registers a COVID-related concern.
“At the end of the day, it’s all about having the safest workplace possible,” Santomassimo says.