Navigating the pandemic has been difficult for all, particularly small businesses. Supply chain issues, travel restrictions, and a labor shortage have hampered companies of all sizes. Some businesses that proactively implemented mandatory vaccination policies have seen serious attrition.
As of the fall of 2021, there are several mandates in place for United States military personnel and federal workers and contractors that basically require vaccination, or the individual must resign. There are some exemptions for medical or religious reasons and in that case, regular weekly testing is mandatory.
However, small businesses may wish to improve protection for workers and customers alike by mandating employee vaccination or regular testing and wearing of masks. Employers may also use incentives for employees that take the vaccine.
A word of caution about the use of any incentives because the vaccine program must remain voluntary, or in other words, no employee coercion. This entire area of employment law is complex, and a lawyer’s help is important to navigate the creation of your COVID-19 vaccination policy.
Mandate for U.S. Businesses
Even if your small business does not fall into the category of a supplier or contractor to the federal government, in early November 2021 the federal Department of Labor Occupational Health and Safety Administration (OSHA) created rules that state that any U.S. company with 100 or more employees must make sure that all their workers are fully vaccinated by January 4, 2022.
If not vaccinated, then employees must test negative for COVID-19 each week and wear a mask at all times. These federal OSHA rules do override the state and local anti-vaccination or mask mandates according to the information provided by the Department of Labor. As can be imagined, this issue has been hotly contested and already in the courts in several states with respect to whether or not the rules are constitutional.
Update November 23, 2021: As of November 2021, OSHA was ordered by a federal court order to suspend enforcement of the Biden administration’s COVID-19 vaccine mandate “until further court order.” Therefore, the mandate will not be used at this time for large private businesses.
Businesses Less Than 100 Employees
Most small businesses are less than a hundred employees and therefore, the federal government vaccine mandates do not apply. In the summer of 2021, the issue was raised that the three approved vaccines actually had only an Emergency Use Authorization (EUA) in the U.S. and therefore, organizations could not require that their employees be vaccinated.
However, the lawyers from the U.S. Department of Justice indicated in an opinion dated July 6, 2021 that “the law does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.” Therefore, it becomes a company decision whether to set a mandatory vaccination policy for those businesses with less than 100 employees.
In reality, it’s not so simple to enforce a blanket requirement for vaccination for your employees because there are other federal laws to consider as follows:
- Americans with Disabilities Act (ADA)
- Title VII of the 1962 Civil Rights Act (Discrimination)
- Health Insurance Portability and Accountability Act (HIPAA)
- Affordable Care Act (ACA)
- Genetic Information Non-Discrimination Act (GINA)
The above prevent discrimination on the basis of disabilities and religion; medical and religious exemptions have been routinely claimed and subsequently challenged in some courts. In addition, HIPAA may protect an individual’s privacy but does not prevent employers and others from asking about vaccination status.
Employers must be mindful of discriminating with healthcare plan benefits based on whether an employee is vaccinated or not. A very complex web of federal laws that may also be complicated by any impact by state and local regulations.
Vaccines for Customers
It may also get complicated when your business is forced to ask customers for proof of vaccination. Some states have passed laws for entry to larger events, either proof of vaccination or a negative COVID test within a certain time period prior to the event is required. Other countries, like Canada and Australia, have set up mobile applications that allow for easy verification of vaccination status to facilitate entry to restaurants, bars, and events.
Recently some cities, such as Los Angeles, set vaccination mandates for anyone entering shopping malls, gyms, nail and hair salons, theaters, and restaurants. The hope is that people will feel comfortable being indoors if they understand that everyone around them has shown proof of full vaccination and this will help small businesses recover from the pandemic.
For small business owners in these states and cities, this begs the question of whether you should require your staff to be vaccinated when customers must be vaccinated to visit your establishment.
Getting Legal Advice Doesn’t Have to be Hard or Expensive
Small businesses may try to go it alone and impose a vaccination mandate or create incentives without considering the legal issues raised above. And while it’s understandable that some businesses may not want to spend money they don’t have, there’s a way to get legal help at an affordable price.
LegalShield’s Small Business Legal Plans include advice, consultation, and document review with provider law firms in your state, and in most cases, you can speak with a lawyer the same day you sign up. After membership is confirmed, contact your provider law firm. A lawyer will call you back within 4 hours or the staff will offer a phone appointment when needed. Plans start at just $49 a month—sign up today!
Pre-Paid Legal Services, Inc. (“PPLSI”) provides access to legal services offered by a network of provider law firms to PPLSI members through membership-based participation. Neither PPLSI nor its officers, employees or sales associates directly or indirectly provide legal services, representation, or advice. The information available in this blog is meant to provide general information and is not intended to provide legal advice, render an opinion, or provide any specific recommendations. The blog post is not a substitute for competent legal counsel from a licensed professional lawyer in the state or province where your legal issues exist and the reader is strongly encouraged to seek legal counsel for your specific legal matter. Information contained in the blog may be provided by authors who could be a third-party paid contributor. All information by authors are accepted in good faith, however, PPLSI makes no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of such information.