Kokua Line: Can a Hawaii employer require an worker to be vaccinated in opposition to COVID-19?
Q.question: Can an employer in Hawaii require an employee to be vaccinated against COVID-19?
reply: Yes, within limits, said Emily Marr, assistant attorney general for the Hawaii Employers Council, an association that offers personnel and labor relationships to its members.
“According to the Equal Employment Opportunity Commission (EEOC) guidelines of December 2020, employers can request that an employee be vaccinated against COVID-19 as long as the employer adequately takes into account those who cannot be vaccinated because of a disability or genuine religious belief . However, according to a recent survey by the Hawaii Employers Council, local employers are far more likely to promote the vaccine than to commission it. Employers can consider questions such as: B. Whether they are a unionized employer, public policy concerns and potential liability. Every organization is unique; It is for this reason that the Hawaii Employers Council encourages employers to consult a trusted legal advisor and human resources team before making a decision, ”Marr said in an email.
Numerous readers ask about the COVID-19 vaccination rules in the workplace. Marr answered the previous and following questions for general informational purposes only.
Q.: I am an employer who relies on personal sales. Most of my employees cannot work remotely. Can I only vaccinate those employees who cannot work remotely, or do I have to have a blanket rule for all employees, even if some of them work from home?
A: “The EEOC does not require employers to take a blanket approach to contracting the COVID-19 vaccine. In fact, a focused and flexible policy is more likely to succeed if challenged by an employee seeking religious or disabled accommodation. Ultimately, as with any policy, employers should ensure that their policies do not have different effects on protected classes. “
Q.: I thought employers couldn’t ask for a COVID-19 vaccination because the vaccines are for emergency use. But I’ve seen on the national news that that’s not right. Please check.
A: The U.S. Food and Drug Administration granted emergency use approval for Pfizer, Moderna, and Johnson & Johnson’s COVID-19 vaccines. The FDA has not issued vaccine mandates, but the EEOC has approved them within certain limits. That is the difference.
“The Centers for Disease Control and Prevention (CDC) have stated that the EEA is not a basis for the FDA to mandate the COVID-19 vaccine. However, the EEOC guidelines allow employers to mandate such vaccinations. As both the CDC and EEOC warn, if an employer requires proof of COVID-19 vaccination, the employer cannot require workers to provide medical information as part of the proof. “
Q.: What if my boss tells me to get vaccinated and I refuse?
A: “If the employee refuses to be vaccinated against COVID-19 because of a disability or a genuine religious belief, the employer must take reasonable precautions. The EEOC guidelines have suggested that employers have several reasonable accommodation options and that the termination of the employee should be a last resort. If the employee refuses to be vaccinated for any other reason, his refusal is not protected by the EEOC. However, an employee can try to mediate their dispute formally or informally with their employer. Otherwise, at least one employee has filed a federal lawsuit. In Legaretta v. Macias, an employee filed a federal lawsuit claiming an employer’s vaccination mandate was illegal because COVID-19 vaccines are currently only approved under the Emergency Use Authorization (EUA) powers of the Food & Drug Administration (FDA). The Legaretta court declined to give the worker an injunction because the worker had not yet been disciplined or fired for refusing to take the vaccine. “
For more information on vaccination guidelines and how to safely reopen jobs, HEC members can visit the organization’s website at www.hecouncil.org.
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