It is likely that President Biden’s administration will implement a mandatory vaccine policy for all private-sector employers with 100 or more employees. Failure to comply with the policy will result in significant fines (up to $13,600 per violation). This sounds simple on its face, but what if you do not have 100 employees; or, what if one of your employees refuses to get vaccinated?
If you employ less than 100 employees, you can still implement a mandatory vaccine policy, as long as it complies with state and federal laws prohibiting discrimination based on a medical condition or disability or a sincerely held religious belief. This requires the employer to engage in an interactive dialogue with the employee in an effort to find a reasonable accommodation for the employee’s disability or sincerely held religious belief.
A mandatory vaccine policy does not mean that every employee must be vaccinated. An employee can refuse to get vaccinated and may still be entitled to keep his or her job. The new policy requires that all employees receive the COVID-19 vaccine and any FDA-approved boosters, or that the employee must produce a negative test at least once a week. Unvaccinated employees will also be required to wear a mask indoors, as well as any other locations that the local, state, or federal rules require masks. (For example, LA and Ventura Counties are currently requiring all people to wear a mask indoors, regardless of their vaccination status.)
At this point, it is unclear who bears the cost of the testing kits, but early opinions appear to put the burden on the employer to provide testing kits or pay for unvaccinated employees to get tested by a healthcare provider or pharmacy. Furthermore, the employer must exercise some control over the testing procedure and accuracy of the results. You cannot permit the unvaccinated employee to test himself or herself at home and self-report the results upon arriving at work.
While this may not present a burden on larger employers, the cost of test kits could tip the balance in favor of smaller employers telling the unvaccinated employee (or applicant) to seek employment elsewhere. The cost factor is not enough by itself to end the interactive dialogue, but it will be helpful to the small business owners’ analysis.
For now, the Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH) are using a number of factors to determine whether a potential accommodation is reasonable or puts an undue burden on the employer. These include: the nature and cost of the accommodation; the employer’s financial resources, the number of employees at a facility, and the effect on expenses at that facility; the employer’s operation type, the geographic separateness, and effect on administrative or fiscal relationship of the facility making the accommodation; and the impact of the accommodation on the worksite.
Some employees may be able to perform their jobs remotely. Others may work alone or outdoors and geographically away from other employees or clients and customers.
If you are an employer and have questions regarding vaccine mandates in the workplace and wish to speak with an Employment Law expert, contact our Ventura County office, at 805-764-6370.
By: Christopher Correa, Esq.
About Christopher Correa
Chris is an expert in COVID-19 employment related issues, such as paid time off, and getting employees back to work safely. Chris advises employers about their rights and obligations as businesses begin to reopen.
Email Christopher at firstname.lastname@example.org.