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Can Companies Require COVID-19 Vaccines?

Note: Talentfoot does not encourage or discourage employers from enacting vaccine mandates. The purpose of this content is to spread awareness about the federal laws vaccine mandates. The information provided in this post does not, and is not intended to, constitute legal advice. 

What do McDonald’s, Goldman Sachs, BlackRock, Netflix, and the parent company of retailers HomeGoods, Marshalls and T.J. Maxx have in common? They require proof of COVID-19 vaccination from their employees.

Many companies we work with announced new requirements for employment: people must have inoculations. Other organizations are asking, “are we allowed to ask for proof of vaccination? What are the rules?”

Vaccine requirements are becoming increasingly common.

On September 9th, President Biden announced that the OSHA will develop an emergency temporary regulation ordering companies with 100 or more employees to require staff to be vaccinated or test negative for Covid-19 at least once a week. The regulations have not yet been issued.

Aside from federal employers, private companies want to know, what are the rules?

The Law of the Land

Private employers are permitted to require COVID-19 vaccination as a condition of employment in every state (except Montana), subject to providing reasonable accommodations for individuals with medical conditions and/or sincerely held religious beliefs that prevent them from receiving the vaccine.

Consult with an employment legal counsel before making any decisions around your company’s vaccination policies. Remember rules are in flux, and things will change once OSHA issues its must anticipated regulations for employers with more than 100 employees.

Stay in contact with your employment attorney as the rules and regulations are implemented. Noncompliance with OSHA regulations may come with consequences.

Once your company decides on a policy, communicate it to all employees. Make the organization’s stance clear. Clearly communicate to your employees: this is our rule, this is why we’ve decided to make it a rule, and the consequences for not following the rule.

New Employees

After you have received guidance from legal counsel, arm your hiring team with some rules around vaccination questions.

Here are some sample guidelines from McGuireWoods. Remember, it is critical that your organization share these rules with all hiring managers.

  • You can ask candidates if they have received a COVID-19 vaccine.
  • You can ask candidates if they are willing to show proof of vaccination status.
  • You can ask candidates if they are willing to receive a COVID-19 vaccine (if it is required for the position).
  • You should NOT ask candidates why they are not vaccinated
    • Asking the “why” question could lead to a disability-related inquiry which is prohibited under the Americans with Disabilities Act. Accordingly, if a candidate indicates that he/she is not vaccinated, you should not ask any follow-up questions as to why the candidate is not vaccinated.
  • You can ask candidates if they will agree to mandatory COVID-19 testing requirements.

Job Seekers

It’s important for employees to understand that private employers are allowed to require COVID-19 vaccination (barring medical conditions or sincerely held religious beliefs that prevent vaccination). As an employee or job seeker, you should be prepared to answer questions like:

  • Have you received the COVID-19 vaccine?
  • Are you willing to show proof of vaccination status?
  • Are you willing to get a COVID-19 vaccine?

These questions are going to become commonplace in corporate America.

MVT – Most Valuable Takeaway

As a leader within your organization, you must be prepared for questions from prospective and current employees. Do not wing this. Consult an employment attorney today to mitigate risk.

If you have questions about COVID-19 interviewing procedures, contact us.