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Employers are Urged to Proceed Cautiously with Vaccine Mandates

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A variety of legal and practical factors must be addressed when an employer decides to implement a workplace vaccine mandate

SAVANNAH, Ga. - eTradeWire -- In light of the rapid spread of the Delta variant and full FDA approval of the Pfizer COVID-19 vaccine, many employers are either now implementing or considering a vaccine mandate. Governing this area is a complex mixture of federal and state law, with densely worded guidance from federal, state, and local health officials. Employers planning on implementing a vaccine mandate should know the basics and consult an attorney in the creation of a written policy prior to implementation.

Pursuant to guidance issued by the U.S. Equal Employment Opportunity Commission on May 28, 2021, there is no federal law which prevents an employer from requiring employees to be vaccinated for COVID-19. Exceptions to these rules do exist but require an analysis of federal law involving the cost and hardship on the employer for granting such accommodations as well as workplace safety concerns.

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Governor Kemp signed an Executive Order on May 25, 2021 which provides that no state agency can require proof of COVID-19 vaccination as a condition of employment by the state, conducting business with the state or enjoying other rights provided by the state. Accordingly, Georgia law does not prevent private employers from mandating vaccines.

There has also been confusion regarding an employer's right to inquire about an employee's vaccination status. An employer may ask without running afoul of the ADA's prohibition on disability-related inquiries. However, additional questions as to their motivations or beliefs could be a violation of federal law. Thus, while employers are free to ask employees whether or not they have been vaccinated, they need to be careful about asking more probing questions or storing this information.

An employer rewarding employees who show proof of vaccination from a third party does not run afoul of federal law. However, if an employer is offering an incentive to employees for receiving a vaccination administered by the employer, additional analysis is required. In this instance, the incentive is only permitted if it is not "so substantial as to be coercive".

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There are a variety of legal and practical factors that must be addressed when an employer decides to implement a workplace vaccine mandate. While there is a level of uncertainty in the legal landscape surrounding mandates, that is unfortunately unlikely to change any time soon. To avoid running afoul of the law, employers would be wise to consult an attorney to successfully implement its vaccine mandate.

Bryan A. Schivera is a partner in the Tax and Corporate department of Oliver Maner. For more information, contact Bryan at bschivera@olivermaner.com.

This article was published by Savannah Morning News at https://bit.ly/3Afd3DR.

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