How exactly will the vaccine mandate for employers work?

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Photo-Illustration: by The Cut; Photos: Getty Images

Earlier this month, President Joe Biden announced a series of measures to more aggressively tackle COVID-19, including a mandate that many employers require their workers to be vaccinated or undergo weekly tests. Here’s what we know so far about how the mandate works.

Private sector companies with 100 or more employees will need to require their employees to be vaccinated or undergo mandatory weekly tests, which cover around 80 million people. The same requirement will apply to nearly all federal workers and contractors, covering several million additional workers, as well as 17 million healthcare workers in hospitals and other institutions that receive Medicare and Medicaid funding. In total, this represents about two-thirds of the entire American workforce. The new law also states that these companies must offer employees paid time off to get vaccinated.

If you work for an employer with less than 100 employees, it will not be subject to the mandate, although your employer may choose to implement a similar rule anyway. One thing the new rule does is give coverage to employers who had previously wanted to require vaccination but feared employee pushback.

First of all, keep in mind that the mandate is not yet in force, so just because your company does not respect it now, it will not be once it becomes law. . This should happen in the next few weeks. After that, businesses will likely have 50 to 90 days to comply.

But if your business ignores the law once it’s in place, you have several options. The first is to file a complaint with the Occupational Safety and Health Administration (OSHA), the federal agency responsible for enforcing and enforcing workplace safety laws, or with your state’s workplace safety agency. Or, if you work at a Medicare or Medicaid reimbursed health facility (which includes everything from hospitals to dialysis centers to home health agencies), you can file a complaint with the US Department of Health. health and social services.

Another option is to team up with a group of your co-workers and advocate for your business to comply with the law. A group can be harder to ignore than a single person, and there can be security in numbers if you fear retaliation.

Speaking of retaliation, the Occupational Safety and Health Act 1970 prohibits employers from retaliating against employees for filing a safety or health complaint with OSHA or for raising an issue. occupational health and safety problem. The national labor relations law also protects your right to discuss working conditions with your colleagues and to organize with them to advocate for change within your company (although the protection of the law does not apply. than non-managerial employees).

Yes! Employers can legally require vaccines as long as the requirement is job-related and “consistent with business requirements.” “Business necessity” can mean that an unvaccinated employee would pose a threat to other employees, customers or the public. It might not affect a distant employee, but it’s easy to pretend it affects everyone. (In fact, many employers, especially those in healthcare and education, have already required vaccinations of other types for years.)

Under the Americans With Disabilities Act, employers must make exceptions for people with medical conditions or “sincere religious beliefs” that mean they cannot be vaccinated, but in these cases you can still require regular testing and other precautions. (More on what this can be in a minute.)

In the case of medical exemptions, federal law allows employers to request medical information from the person requesting the exemption and then requires them to engage in an “interactive process” to determine reasonable accommodations. It is important to note that the employer does not need to accept specific accommodations requested by the employee; they may come up with other accommodations that meet the goal, including things like hiding themselves at work, keeping the employee isolated from others, changing their shift to minimize contact with others, or even make him take unpaid leave (like at least one the airline does).

With requests for religious exceptions, an employer can legally question or challenge a stated religious belief if that employer has an objective basis for believing that the employee is dishonest or that the objection is not actually based on religion. . However, religious claims can be difficult to refute (in part because the law does not limit its definition of a religious belief to those associated with an actual religion), and there may be legal risk in rejecting them. But as with medical exemptions, the employer only has to offer a reasonable accommodation, not necessarily the one the employee prefers.

You might run into the problem of dueling accommodation requests – for example, if one employee cannot be medically vaccinated and another has a medical condition that makes it particularly unsafe for them to work in an office. with unvaccinated people. In these cases, the employer is required to initiate an interactive process with both employees to see if they can suggest accommodations that will resolve the issue. For example, you could decide that one of them will work from home, or on a separate shift, or in a separate area of ​​the office where the other will not be allowed to enter. In some cases, there may be no way to accommodate both employees without what the law calls “undue hardship” on the employer, but legally they must try to work with both employees to see. if they can find solutions first.

The hiring rules are similar to require vaccination among your current employees. You can indeed require vaccination when you are hired, provided you allow medical and religious exemptions.

It is not rude to ask for the information you need to protect yourself. “I am very careful, can I ask if you are vaccinated so that I can take precautions if you are not? “Or” Before I meet in person, may I ask you if you are vaccinated? Are perfectly reasonable questions to ask in a global pandemic. (That said, any time you hang out with people you don’t know well, it may be safer to assume that one or more of them might not be vaxxed and take precautions accordingly.)

Order Alison Green’s Book Ask a manager: ignorant coworkers, bosses who steal lunch and the rest of your life at work here. A question for her? Send an email to askaboss@nymag.com. Her advice column appears here every Tuesday.


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