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Vaccines and your Business

Coffee Break CertiPay HR Ninjas

Webinar: #3
Date: February 4, 2021



Rachel Comella

Rachel Comella’s HR career spans 20 plus years with experience in many corporate entities. Rachel holds a Master’s Certification in Employment Law from George Washington University and a Bachelor’s degree in Public Speaking from the University of South Florida. She has been a member of SHRM and HR Tampa since 2001.

Certipay has been her home base for the last 5 years where she has provided high level HR consulting to C-Suite, Executive and Senior level managers across the country. She has also developed a training and live webinar program for employees, clients, and leaders in order to increase knowledge on HR topics and COVID-19.



Can we mandate vaccines? Is it legal to require vaccines?

Legal to Mandate

As a culture we already require vaccines in some situations, teachers and Dr.'s offices already require flu shots. Be careful to have all of the information first.

The EEOC indicates you can mandate vaccines but you have to prove that induvial poses a direct threat to health and safety.

Religious and medical exemptions may apply. An employee can seek a medical exemption or a religious exemption. Employers will be obligated to provide accommodations such as PPE and allow remote working. Think about these things and include it in your policy

Individual states may provide employment protections. So while there may be a general approval of the mandate be careful of where your state falls in this situation.

Concerted Activity NLRB National Labor Relations Board

If you have a policy in place where vaccines are mandated, that now becomes a protected conversation.

So employees can now discuss it openly and this is concerted protected activity. Employers Cannot terminate an employee for their verbal opinion of the policy.

Protections under NLRB

Requiring vaccination implicates 2 safety considerations:

  • Employers could argue that vaccines are necessary under the OSHA general duty case
  • Although vaccines go through regulatory testing and review, adverse reactions do sometimes occur.

If you're requiring individuals to get a vaccination as a condition of employment and one of those individuals has an adverse reaction you are now looking at a workers comp situation and the expenses with that.

These are things to think about with in the big picture.

Confidentiality

You must keep any information gained through a vaccination program confidential. If you collect vaccination records, OSHA requires you to keep those records for 30 years following the term date. If you ask for vaccination records you are obligated to warn your employees not to provide additional generic information as part of the proof.

Employers must ask themselves if they are willing to lose some employees due to a vaccine requirement. There may be people who are exempt for religious reasons or choose not to do it or leave because it's a requirement.

Emergency use Authorization or EUA

FDA Infographic

Part of the FDA requirement of an EUA is that recipients have the right to decline. It might be wise to wait until there is a fully approved vaccine.

At this point it might make more sense to encourage rather than require it.

Be patient while situations are changing.

Stay tuned we will keep you up to date!

*Disclaimer: This is a perspective from an HR standpoint we are not epidemiologists, not vaccine experts and we do not work for the FDA. We are not telling you to vaccinate and we are not telling you not to vaccinate. We will further explain what to be mindful of as you navigate this situation.

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