September 13, 2021, Comment off

Considering a COVID-19 Vaccinate or Test Requirement?

The state of California is the first in the nation to mandate vaccinations for health care workers and state employees. Many private companies and several large health care systems have already implemented compliance measures to vaccinate or get tested on a regular basis. Does your company need to consider these measures? Have you already developed a policy? Here are trends and points to consider.

As COVID-19 variants and the current spike in positive cases and hospitalizations prolong the pandemic, employers are contemplating additional measures to keep employees healthy. To date, According to the Centers for Disease Control and Prevention, 53.2% of the population is fully vaccinated, with 62.5% having received at least one dose.  Medical professionals are in agreement that vaccinations are an important step in a long battle our nation and the world are facing.

From an employer standpoint, the question remains whether there is enough from a legal standpoint to develop and enforce a policy. And what if employees are unionized? Will unions embrace or oppose vaccination or test requirements? Is a vaccinate or COVID-19 test requirement legal? Daryl Landy, an attorney with Morgan Lewis in Costa Mesa, Calif., said, “there is substantial legal support in California and under federal law, for private employers to make vaccination a condition of hiring or continued employment, and the state’s (Calif.) recent actions should provide additional support for employers that are considering a vaccine mandate. Employers still need to consider reasonable accommodations for employees that have religious and disability-related objections.”

Resources For Employers Considering Policies

In Summary

Whatever your company decides to do, employment law experts suggest giving workers a seat at the table as policies are discussed. For California, attorneys are offering these steps that can help all employers in the future.

Mini Kapoor, an attorney with Haynes and Boone in Houston, Texas, said the California order essentially requires covered employers to:[1]

  • Track and verify employee vaccination status.
  • Establish testing requirements for employees who are not fully vaccinated.
  • Comply with current masking guidance from the California Department of Public Health (CDPH), which requires mask-wearing for everyone in health care and other high-risk settings and recommends that unvaccinated people in high-risk settings use respirators if they aren’t otherwise required to do so under state law. The CDPH also updated its recommendations for fully vaccinated people to resume wearing masks in public indoor settings.

Landy recommends that covered employers:[2]

  • Immediately explain the new requirements to employees.
  • Ensure the HR department is ready to evaluate and respond to accommodation requests.
  • Develop a standard process for collecting vaccination status information and maintaining the confidentiality of that information.
  • Provide information to unvaccinated workers on where and how to obtain regular testing for COVID-19.