EMPLOYERS FACE PROBABLY one of the most challenging periods in history to not only maintain but grow their businesses. Across the board, employers are struggling to fill critical positions. Latest statistics show upwards of 40 percent of current employees are resigning and with 25 states instituting vaccination mandates, those challenges have escalated to a whole new level.
It’s a country divided. Millions of Americans, for various reasons, are against vaccination. With 21 US states that now specify requirements for healthcare workers to be vaccinated and regular testing of unvaccinated employees, employers have been forced into the middle of a political/social/morale issue; a place where most employers don’t want to be.
Federal guidance does not preempt state law. In Montana, for instance, vaccine status is now a protected class and employers would be discriminating under the state’s employment laws by making employment decisions – like hiring and firing – based on vaccination status. This will become increasingly relevant for employers as more states consider similar legislation.
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Six states have a “vaccinate or terminate” mandate but still allow healthcare workers to perform their duties if they have a valid religious or medical exemption as defined by the Equal Employment Opportunity Commission. Those states include Colorado, Maine, New York, Oregon, Rhode Island, and Washington.
According to the statement on the EEOC website under the COVID stipulations, “If you did not take a COVID-19 vaccine because of your disability or religious belief, practice, or observance, you might be able to get an exception to your employer’s vaccination requirement, and instead ask to use masks, social distancing, schedule changes, or reassignment to stay safe at work.”
Presently, nine states have passed laws that ban employers from mandating vaccines for workers and additional states are expected to follow suit. Some mid-west and southern states are pursuing legal action against the current administration citing that the plan put forth is unconstitutional.* That is a “wait and see” situation that continues to evolve.
Keep in mind, some state mandates apply only to healthcare employees or healthcare facilities. Others only apply to long term care or nursing home facilities. Then, in New Hampshire, which bans the mandate of vaccines as a condition of employment unless the employee is considered a “direct threat” cannot be addressed by other means or reasonable accommodation.
A recent article by Ty West, editor-in-chief of The Playbook cited that “Now US employers have this administration’s rule from OSHA requiring large employers (100-plus employees) to either mandate the COVID-19 vaccine or require weekly testing of unvaccinated workers, they have until January 4th to ensure this rule is in place.” The rule is temporarily blocked by a federal court, but companies should be preparing in the event the legal challenge doesn’t hold up.
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Employees Rule
At least for now. With unprecedented labor shortages, businesses need to pull out all stops when it comes to recruitment efforts, securing and maintaining employees. The vaccination is certainly one huge wrinkle in the mix but beyond that, companies need to be extremely flexible with their “remote work” options. In addition, sign on bonuses, award programs, CEUs, college tuition reimbursement, PTO, healthcare benefits and every other kind of employee benefit you can offer to set your company apart from others vying for the ideal candidate is what it will take to secure them. And you’ll need to adopt this new way of thinking for the foreseeable future. But rest assured, the pendulum will swing the other way. It always does.
*Sources:
LeadingAge 10/5/21 issue
The New Employee Status; JD Supra by Shea O’Meara
Ty West, editor-in-chief of The Playbook