Construction supply executives accustomed to playing defense during this Covid pandemic soon will have an opportunity to go on the offense now that vaccines are arriving at communities nationwide. So long as you follow the rules, you can even go beyond encouragement and require most employees to get the shot. Here are some factors that could influence your plans.
Opposition has moderated. Two Kaiser Family Foundation surveys found that the percentage of people who say they definitely or probably will get a vaccine his risen to 71% as of early December from 63% in early September. That willingness is predicated on the notion that the vaccine would be free and deemed safe by scientists. Among ethnic groups, blacks remain more hesitant; 35% said they probably or definitely won't get it as of December, vs. 26% for whites and hispanics.
Your customers (probably) remain carriers. Construction Dive reports that results of more than 730,000 Covid tests conducted in Los Angeles between August and October "found that construction workers had the highest positivity rates for asymptomatic cases of any occupation." Construction workers had a positivity rate of 5.7% for individuals and 10.1% for those with symptoms. Those shares even beat the numbers for first responders, retail workers, healthcare personnel, and grocery store workers. Given the explosion of cases in Los Angeles this winter, the rates for construction might not be so high elsewhere, but the relative differences between pro groups could be the same.
You CAN Require Them ... "Employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace," Robin Samuel, an attorney with Baker McKenzie in Los Angeles, was quoted by the Society for Human Resources Management (SHRM) as saying. Another attorney identified retail among the types of businesses for which a business necessity case could be made. And employees could argue that you're violating the Occupational Safety and Health Act by failing to provide a safe and healthy work environment.
... Provided you follow the ADA and other laws. On Dec. 16, the U.S. Equal Employment Opportunity Commission updated an FAQ memo on Covid. The Americans with Disabilities Act (ADA) restricts when and how much medical information an employer may get from an employee. Companies can ask an employee about whether they are having Covid-related symptoms such as fever or sore throat. If you decide to require employees to get the vaccine, you must follow ADA rules by showing any screening questions you ask prior to the injection must be job-related and consistent with business necessity. "To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.," EEOC wrote.
What if I offer vaccinations to employees on a voluntary basis? In that case, you can ask disability-related screening questions without meeting that "job-related and consistent with business necessity" requirement. If the employee chooses against answering those questions, you can decline to administer the vaccine, but you can't retaliate against or threaten the employee for that refusal. This also applies if the employee gets a vaccine from a third party that hasn't contracted with the employer.
Don't forget religious objections. Employers must accommodate employees who have given notice that they have a "sincerely held religious belief, practice, or observance" and thus cannot receive a vaccination, EEOC said.