Farm employers are taking different positions on how they handle employee vaccinations. Some employers are aggressively encouraging vaccination, hosting mobile clinics, and even requiring all employees to be vaccinated. Other employers are taking a much more hands-off approach. Colleagues and I wrote earlier about: “How to talk about COVID-19 vaccination with your employees.” In this post, we consider some key questions that farm employers are asking and attempt to provide some helpful resources.
Can an employer ask employees if they are vaccinated?
Yes, the Equal Employment Opportunity Commission (EEOC) weighed in on this question back in December 2020. Go to their publication: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” and scroll down to section K about vaccination. Question K.3 goes into detail about how you can ask, and even ask for proof, that an employee was vaccinated. Be cautious, however, about any follow up questions about why an employee is not vaccinated. These could lead to discussions of medical or disability issues that might be protected by the American with Disabilities Act (ADA), so you want to avoid that.
Can an employer ask a job applicant if they are vaccinated?
The answer to this is also yes. Similar to the question above, the EEOC says that COVID-19 poses a direct threat to the workforce and employers have an obligation to protect the workforce from direct threats.
Can an employer require employees to have the COVID-19 vaccine?
Employers are certainly able to recommend and encourage the vaccine for their employees. Federal and state governments and health authorities are all asking employers to do this and even providing resources to help, so employers have little to no liability for encouraging vaccinations. Requiring employees to get vaccinated is a very different thing, but there appears to be no laws preventing it, according to FisherPhillips attorney Kevin Troutman, New York law firm Adams Leclair, and to the Society for Human Resource Management (SHRM). That said, if an employer does require the vaccine, they must comply with employee protections in the law. Specifically, employees who refuse vaccination based on a disability or religious beliefs may need to be excused from the requirement or accommodated according to the Americans with Disabilities Act (ADA).
An article from SHRM attorney Allen Smith in December 2020 discussed which employers might want to consider a vaccine mandate. Essentially, if a business and its employees interact extensively with the public, like healthcare, travel, or restaurants, then they have a better case for requiring vaccines of employees. Other employers, such as farms, may not have a lot of exposure to the public, so employers would need to make the case that vaccinations are required in order to keep the employees safe. In any case, if an employer decides to require vaccinations, they must be prepared to consider the ADA exemptions mentioned above, and discussed in detail by SHRM. ADA requires a back and forth discussion or negotiation between the employee and the employer to determine if a “reasonable accommodation” can be reached. A reasonable accommodation could be lots of things depending on the particular case: requiring mask wearing around others, limiting access to certain areas of the business, changing job duties, or altering hours. If a reasonable accommodation cannot be reached between the employee and employer then it is possible for the employee to be suspended from work without pay or terminated. Terminating someone for this reason is a big step and employers should definitely seek legal counsel for the reasonable accommodation process and to avoid termination. As always, document every step in the reasonable accommodation process in writing.
Do we need a written policy encouraging or requiring employee vaccinations?
Written policies are helpful when they are carefully written, consistently followed by employers, and communicated to employees. There are no specific requirements that employers have a written policy on this issue. The law firm Fisher Phillips has a library of vaccine resources, including example mandatory and non-mandatory vaccination policies.
These issues are difficult and vary greatly from case to case, consult a qualified labor attorney for specific legal advice. Farm employers should continue to provide leadership and encouragement for employee vaccination until we reach high rates of protection in our farm communities. I’ve heard some great stories about farm leaders who were able to use their influence to get nearly 100% of employees vaccinated in their own and neighboring farms.
By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution. The post Vaccination Questions, Requirements, and Policies for Employees appeared first in The Ag Workforce Journal
