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Q&A: Hiring Policies During COVID

By September 27, 2021October 13th, 2021No Comments

Can our organization have a hiring policy that mandates hiring only vaccinated people?

Yes. President Biden’s mandate on September 9th, 2021 requires all private employers with 100 or more employees to mandate that all employees be vaccinated or test weekly. There are accommodations for those with disabilities who may be medically unable to receive the vaccine or those with sincerely held religious beliefs that also prevent them from becoming vaccinated. Also, this mandate requires covered employers to provide employees with paid time to receive the vaccine, as well as time off to recover from any side effects that may occur. [1]

As of early October, there is no effective date for this requirement, and we are all still waiting on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) to give us more complete information and guidance. We anticipate that OSHA will have information to help navigate this new mandate soon.

In anticipation of the ETS from OSHA, many businesses have made a decision to only hire vaccinated people.  If that is something your organization has decided to do, here is a list of “dos and don’ts” when updating your hiring policy to mandate hiring only vaccinated people.

  • Make it clear in your job postings that employment is contingent on having or receiving a COVID-19 vaccine. It is suggested to include vaccination with any other requirements for hire, like background checks.
  • Include clear information on any legally mandated accommodations individuals may need to request.
  • Clearly define the time frame in which your new employee must be fully vaccinated and make sure to disclose the consequences for not complying. Be consistent in your application of these policies! Consistency is key.
  • Clearly state the vaccination requirement throughout the hiring process and ask every applicant if they are able to comply with the requirement, with or without accommodation. Do not make any medical inquiries prior to an offer of employment.
  • During the hiring process, do not allow candidates to explain or elaborate on any reasons why they are or are not vaccinated. It is perfectly fine to interrupt the candidate. You do not want potential claims of discrimination based on anything you heard regarding possible medical or disability information prior to making hiring decisions.
  • Do not ask for or collect any proof of vaccination until after your offer of employment has been given and accepted.
  • As with any potential medical information received from an employee, you must ensure that the information is stored/kept confidentially.
  • Remember to be consistent in your hiring (and all employment) actions and decisions!
[1] If you are an employer in Montana, stay tuned. As of the time this was written, Montana is the only state that prohibits any employer from requiring vaccines as a condition of employment. Montana also has strict requirements regarding at-will employment.

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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.

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