Audience questions from our “Vaccinations mandates, testing, and exceptions” webinar

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Understanding the COVID-19 landscape is no easy feat. With all there is to know about the variants, the vaccines, the testing, the boosters, etc., it’s hard to keep it all straight. That’s why Guardian recently hosted a webinar on “Vaccine mandates, exemptions, and testing” so people could learn more and ask questions. Now you can learn more, too. We’ve compiled a list of important Q&As from the webinar so you can stay on top of all the recent COVID-19 changes.

Booster/Employer Policies/Exceptions

  1. Since boosters are recommended for anyone over 18, would the employer need to require a "booster" for an employee to be considered fully vaccinated? Not at this time.  Many employers are basing their definition of Fully Vaccinated off of the CDC’s definition, which does not currently include booster shots.  That said, the CDC does now recommend that everyone “stay up to date”.  Please click on this link for a chart from the CDC explaining when someone is up to date on their vaccine shots:  https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html.
  2. Can I set my own vaccination policy (mandate) as an employer? Subject to any local laws prohibiting mandates, the answer is yes.  As of December 7, 2021, if you are located in Alabama, Arkansas, Florida, Montana, North Dakota, Tennessee, Texas or Utah, you should consult with local counsel to make sure your mandate is consistent with laws enacted in those states.
  3. An employee wants a religious exemption. How do we verify it’s a sincerely held belief? You may ask the employee to articulate in writing, with specificity, what their religion is and what are the sincerely held religious or spiritual belief(s), practices or observances that they hold which prohibit them from taking any COVID-19 vaccine that is currently fully approved, or authorized for emergency use, by the Food and Drug Administration.  Employees should state how long they have held such beliefs or engaged in such practices, indicate whether their religious or spiritual beliefs, practices or observances prohibit their receipt of all vaccinations, or just the COVID-19 vaccines, and why.  If an employee submits a letter from a religious leader, look to see if it is someone from that employee’s local church, synagogue, mosque, etc., or is it from somewhere far away indicating the employee may have purchased it online.

Multi-state employers/remote workers

  1. As a multi-state employer, do we need to have different requirements for each of the states?  You may either have one policy that is drafted to comply with the most employee-friendly rules, or you may tailor your policy based on where employees are located.
  2. If my employee travels to a different state, what vaccinee rules do they need to follow? If, for example, a New York employee travels for business to Texas, like with any other law, they would need to comply with Texas law while in Texas.

HIPPA/Privacy (Proof of Vaccination)

  1. Doesn’t asking for proof of vaccination from an employee violate their privacy under HIPPA?  No.  HIPPA does not apply when a private employer asks its employees to produce proof of vaccination. See https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-covid-19-vaccination-workplace/index.html
  2. Our clients are requesting specific vaccine information about our employees. Do we need the employee's permission to share their information? You should treat your employees’ vaccination information as confidential medical information. You should maintain it not in their personnel files but in a separate medical file. In this regard, you should obtain your employees consent to share their status.

Testing/PTO requirements

  1. Is an employer responsible to pay for weekly testing of an unvaccinated employee with an exception? It may under applicable state law. President Biden has ordered health insurance companies to cover the cost of testing.
  2. For employees who do not have available paid time off/sick time, does the employer need to pay for vaccination recovery time? And what is the limit, if yes?  In general, no.  You should check to see if your particular jurisdiction has any local laws that may require you to provide paid time off, like the Colorado Healthy Families and Workplace Act.
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