For employers considering a return to on-site operations, a new challenge awaits – navigating the uncharted waters of employee vaccination. Should employers mandate vaccinations, strongly suggest them, or remain neutral? Should vaccinations be provided by the employer or contracted out? What are the liability issues facing employers in both situations?
Every business will have a different regulatory puzzle to piece together, so we are listing a few of the biggest factors you’ll want to consider in the creation of a vaccination policy.
If considering a mandatory vaccine, there are four main major areas of law affected.
The ADA permits employers to require vaccinations under certain circumstances. However, mandatory vaccines implicate two portions of the ADA:
- Medical Examinations and Disability-Related Inquiries: The ADA restricts an employer’s ability to conduct “medical examinations” and make inquiries into an employee’s disabilities. The pre-screening questions asked in administering the vaccine qualify as a medical examination or disability-related inquiry.
- Reasonable Accommodations: The EEOC has addressed vaccines directly and identified a remote-work policy, wearing masks, gloves, social distancing etc. as reasonable accommodations. If an employer can eliminate or reduce the risk of harm imposed by COVID-19 by implementing these things, then it may not require vaccines. But if adopting these accommodations would impose an “undue hardship” on the business, then the employer does not have to provide the accommodation. Employers may also not require the vaccine if an employee has a medical reason for not being able to take the vaccine.
Title VII prevents an employer from discriminating against employees “on the basis of his race, color, religion, sex, or national origin.” Under this statute, an employee may refuse to take the vaccine due to a sincerely held religious belief or practice.
An employer must provide a reasonable accommodation (see examples above) to any employee who refuses taking the vaccine for reasons protected by Title VII (religious reasons), unless the reasonable accommodations impose an undue hardship. What qualifies as an “undue hardship” must be determined on a case-by-case basis.
OSHA permits employers to require mandatory vaccines and has been used in the past for vaccination in the H1N1 Flu context. However, OSHA cautions employers to know the benefits and to respect refusals for medical reasons. There is no indication that an employer would be in violation of OSHA’s safety requirements in the event it did not require the vaccine.
A tort is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”
Many states recognize the tort of negligent transmission of an infectious disease. Under this form of negligence, an employer may be liable for negligently causing the spread of COVID-19. However, an employer or employees would need to have a confirmed positive and still risk transmission before the employer may be liable. It is unlikely that not mandating a vaccine would create liability, however – general negligence still applies and deciding to not require a vaccine may still be a factor.
Those are the main four legal areas to consider, but there are other liabilities to consider as well. These include questions such as:
- Are employees who suffer adverse effects from vaccinations covered by worker’s comp?
- Is the vaccination program covered by liability immunity under the Public Readiness and Emergency Preparedness Act?
- Are liability waivers appropriate and enforceable under your state’s law?
- Is your vaccination program subject to any bargaining requirements under union collective bargaining agreements?
- If there are not enough vaccinations available for all employees, how will you prioritize vaccinations without implicating age, disability, and genetic information?
It is likely that these potential liability issues, in conjunction with the laws mentioned above, may create more of a hassle for employers than it’s worth. Either way, these are crucial considerations in the creation of a vaccine policy.
In addition to legal guidelines, there are also guidelines by the Centers for Disease Control Prevention (CDC) employers must stay aware of. According to CNBC, the CDC is now recommending that people age 65 or older should begin receiving the vaccine.
The status of your employees will also factor into a vaccination plan, as essential workers are a large group, broadly defined as “first responders, educators, child care providers, food and agriculture workers, correctional facility staff, postal workers, public transportation workers, and manufacturing and grocery workers.” This article by the National Conference of State Legislatures can help more clearly determine if your employees qualify as essential.
Lastly, it’s important to consider what is feasible for you in terms of capacity. It is a huge task for a non-health care employer to take on the responsibility of facilitating their own vaccinations. Specifically employers face the challenge of refrigeration—more for the Pfizer than the Moderna vaccine—and the need for a second dose.
However, contracting with reputable third parties can be a good solution for employers. In this case, it is well-advised to mandate vaccines by an administered pharmacy or health provider that is not acting as an agent of the employer.
According to the law, an employer may require its employees to submit to mandatory COVID-19 vaccination. To do so, the employer will need to show there are no other reasonable accommodations available that do not impose an undue hardship. Additionally, the employer will need to respect employees who refuse to take the vaccine for disability or Title-VII-related purposes, offering reasonable accommodations to these employees. Employers should also consider other worker’s comp questions, waiver liabilities, and CDC Guidelines in the creation of a vaccine plan. And finally, if considering a mandatory policy, consider out-sourcing as a way to ensure safety, compliance, and a manageable workload.
The considerations surrounding workplace vaccination programs are complex. If you’re looking for a personal approach to handling policy and employee relations, contact us! As a fully integrated HR team working for your protection, these kinds of questions are our specialty.
(*For even more specific policy questions, we recommend this article – outlining detailed questions for vaccine policy and practice.)
Tis the season of the office holiday party. Sounds like, fun right? But there are risks. One act of bad behavior can turn into a legal mess. As the office holiday party season kicks off, here are some tips on how both employers and employees can avoid liability while still enjoying some holiday cheer.
Tip 1: Don’t serve alcohol
Having an alcohol-free event is the best way to minimize risk for employers. Court records are filled with examples of people sexually harassing co-workers or making inappropriate comments at parties where alcohol is involved.
And even if the party goes off without an issue, perhaps the biggest concern is that an employee will drive home under the influence and hurt or even kill someone. As the host, your company may be found liable because alcohol was served at the party.
Tip 2: Managers should lead by example
Emphasize to management that they must lead by example. When it comes to behavior at an office party – people will follow examples – good or bad.
Tip 3: Hold the party at an offsite location
If problems do arise, it is better that they occur away from the business premises. Depending on the state, liability will generally be on the restaurant or event venue rather than the company. However, it is not unusual for an employer to be named as a defendant in a civil lawsuit if an intoxicated employee leaves any company-sponsored event and injures himself or herself or another person as a result. See tip number 1.
Tip 4: Invite spouses, significant others or families
Aside from excessive drinking, the next most common issue is sexual harassment. Employees are still bound by workplace policies, even at after-hours parties. A family-friendly environment will limit this kind of risk.
Tip 5: Arrange alternative transportation
After reading Tip 1 above, if you still decide to serve alcohol, anticipate the need for alternative transportation for all employees and guests. Make special transportation arrangements in advance of the party. Encourage all employees and guests to make use of the alternative transportation if they consume any alcohol.
Bonus Tip: Did we mention, don’t serve alcohol?
Last night, a federal district court in Texas granted a preliminary injunction that temporarily blocks the U.S. Department of Labor from implementing and enforcing its recently revised regulations on the white collar exemptions to the Fair Labor Standards Act (FLSA).
As you know, the overtime rule was scheduled to take effect Dec. 1 and would have raised the salary threshold from $23,660 to $47,476.
Employers should note that this is only a temporary injunction, not a permanent one. The injunction simply prevents the regulations from going into effect on December 1. There will be a decision issued at a later date on the actual merits of the case, so changes in the FLSA salary threshold for exemption may be back. However, the judge wouldn’t have granted the preliminary injunction unless, among other things, he thought the states showed a substantial likelihood of succeeding on their claims.
What may be likely is the change will eventually go through – but maybe with a lower number or a small business limitation or exemption created by the Trump Administration and the new Congress.
As Servant HR has worked through the ramifications with many of you, some of you did make some decisions. If your decisions included salary increases to employees in order to maintain their exempt status and HAVE BEEN COMMUNICATED, you may wish to leave that in place as it would be difficult to take that back. We cannot assume that the overtime rule will be permanently barred.
However, if there are exempt employees who were going to be reclassified to nonexempt that have not been or wage increases had not been promised yet, you may want to postpone those decisions and give the litigation a chance to play out.
Servant HR will continue to advise you as implementation becomes more clear.
While we have already reached out to many of you, if you have specific questions about your situation or wish to undo something you already have communicated to us, please contact us directly.
And HAPPY THANKSGIVING a little early!!
Did you know most hiring managers decide whether they are going to hire someone in the first 3 minutes of an interview? And that is not enough time to conduct an effective interview. In fact, ineffective job interviews often lead to bad hires and that is a costly proposition when you factor in training costs, wages, and lost productivity when you have to do it all over again.
In order to improve your odds, you need to be prepared. Conducting a structured interview requires time and forethought. Some studies suggest businesses spend at least one hour preparing for an hour-long interview. It’s well worth the investment.
Here are the Top Ten tips for conducting more effective job interviews – and hiring the right person.
1. Have a current, accurate and enticing job description.
Job descriptions should identify the specific knowledge, skills, and abilities that are critical for the candidate to succeed at the job. What critical need does the company have, and how will the candidate fulfill that need? Make sure to also identify the personality traits required for the specific job. Once you’ve performed the job analysis, develop the interview questions based upon the determined criteria.
2. Create a structured interview process.
Structured interviews help ensure all candidates are treated similarly, and research has indicated they are more effective than unstructured job interviews. To create a structured interview:
- Ask every candidate the same interview questions, and plan follow-up questions to likely responses.
- Evaluate candidates using an objective and thorough rating scale.
- Provide training to all interviewers to enable them to conduct interviews using a consistent method and tangible tools to evaluate candidates so they aren’t relying solely on instinct.
3. Ask behavioral questions.
Asking hypothetical or open-ended questions like “how would you deal with an angry coworker?” or “what are your strengths and weaknesses?” encourages candidates to frame their responses according to what they think the interviewer wants to hear. This is not the best method.
Behavioral interview questions are designed so candidates describe things they actually did in a previous situation and the outcome of their actions. Ask questions like “Tell me about a project you helped initiate. What was your role? What were the results?” and ”Tell me about a time you made an unpopular decision. What were the reactions? How did you respond?”
4. Contact references.
References are a valuable tool for attaining a more complete impression of a candidate. References can verify information, provide feedback on the candidates’ past job performance and accomplishments, and give insight into whether they’ll fit with your company’s culture. They can also verify the accuracy of the examples given in responses to the behavioral questions posed during the interview. When considering a candidate, it’s also prudent to examine their resume to find colleagues who are in your business network and contact them as well.
5. Use the interview to describe the job position.
Interviews are opportunities for managers to give candidates a realistic impression of the job position and the company culture. Some managers are tempted to oversell the company in job interviews, which can ultimately lead to employee dissatisfaction in the long run. Answer questions thoughtfully and candidly and let your natural enthusiasm for the company show, and you’ll help the candidate make an informed decision.
6. Hire for attitude.
At least one study found that 89% of the time new hires failed, it was for attitudinal reasons, not lack of skill. Hire for characteristics that align with the company’s values as well as technical skills. Be proactive about recruiting people who will be good for your team. High performers are a good source of referrals.
7. Don’t take chances.
Sometimes employees can hire candidates with obvious deficiencies, in hopes they will change. There will always be some compromises made, but if a candidate has a track record of burning bridges, missing deadlines, or quitting multiple jobs within a few weeks – their past behavior is the best indicator of future behavior.
8.Silence Can Be Golden.
Try pausing and counting to 5 after an answer to a question you want to know more about. Let them fill in the silence and reveal more.
9. One more interview.
If you have doubts, conduct one more interview. A bad hire is too costly to the company to forgo the additional interview. And if you find you’re deciding between a pool of average candidates, continue the process until you find someone who fits.
10. Look on social media.
Is the candidate on social media such as Twitter or Facebook? What do they comment on? What do they do with their free time? Who are they are linked to on LinkedIn? Social media channels can give a good look into whether someone will fit your culture.
By taking the time to sufficiently prepare for an interview and asking the right questions, companies can improve their chances of hiring the candidate who is best for the job. If you need help developing an effective interview process which produces consistently great results, don’t hesitate to reach out to us.