November 9, 2021
One thing we do know about these recent vaccine mandates: The challenges aren’t going to resolve themselves. But how can you implement a strategy when there seems to be a grey area between what the state and federal governments are saying?
What side of the fence do you as the employer have to be on?
In this webinar, Engage by Cell CEO Dave Asheim interviews one of the country’s top vaccine authorities plus two expert HR consultants with boots-on-the-ground experience in vaccine safety, management training, and more.
Brenda Neckvatal is an award-winning HR professional and best-selling author with 30 years of experience consulting nearly 500 small businesses and C-suite leaders.
Michelle Gray, SHRM-CP, PHR is the Founder of Integra HR Consulting and Director of the Arizona SHRM State Council.Kevin Troutman is a member of Fisher Phillips' COVID-19 Taskforce and leads its Vaccine work group, both of which are dedicated to advising employers on the many workplace law aspects of the global coronavirus pandemic.
Here are the highlights of their discussion:
Status of the November 2021 Vaccine Mandate Appeals
The Fifth Circuit Court of Appeals in New Orleans has received lawsuits by several companies. The court issued a stay basically saying they’re not moving forward with enforcing this rule, but what it really means is that all of the circuit lawsuits related to this issue are going to be put together and sent to one circuit on November the 16th. From there, we'll know whether it moves forward or not. I think it will, and certainly our advice has been that you should prepare as though this rule is going into effect. Because if you don't, and the court then decides that it's going forward, then you're going to have even less time to get compliant.
Important Deadlines to Remember
December the sixth is actually going to be the first deadline by which under the OSHA rule, employees have to at least have their first dose of the vaccine. And then January 5 is the date by which they have to have a second dose. Even though January 4th is the ultimate deadline, there's an important deadline in December. That's why employers need to be thinking now about what are they going to do. Don't expect this to just go away. We're going to have to deal with it. It's going to be a reality.
Consistent Communication: We’re All in This Together
Regardless of the size of the organization, management needs to make sure that their message is consistent. I think that's the biggest breakdown when one manager is communicating something totally different than another. If you're in an office, try to have that interpersonal connection, because people often have a better understanding when they see an individual talking. They can feel the message, “We're in this together.” Instead of putting blame, talk about what your organization needs to do to be safe.
Dealing with Angry Employees: Start with Leaders
Even before this recent mandate, managers probably already had angry employees coming to them. So first, educate your company leaders on how to effectively respond. The number one objective at this point is to gain buy-in. You can't control the range of employee emotions. The only thing that you can control is your message. The last thing you need is a rogue manager popping their emotional cork off on everybody. Work with your leaders and give them space to express what is on their mind so that they can turn around and effectively lead.
Give Employees a Choice
The employer has the choice under the OSHA rule. You can require everybody to get vaccinated, but you've still got to deal with accommodation requests. In the environment that we face, it's probably a good idea in most situations to say to your employees, “You're either going to need to get vaccinated or to get tested weekly.” Give them the choice.
Employee Vaccine Mandates: A Balancing Act
I've seen some clients who are forcing the issue. In some cases, it's because they had the experience of being in areas that had higher levels of infection, and they maybe had employees who've been directly affected, and they don't want that to happen again. I've seen some that just want to be very cautious. Safety is their top priority. But they also have to keep in mind that they could lose some employees if they push the issue too hard. So it's a balancing act more than anything.
What Data Should You Track?
Follow what you see on the CDC Covid vaccination card. Get the employee’s name, the manufacturer, and the lot numbers. Have really good, reliable systems to protect the information. You don't have to be a document expert, but you obviously can't let inauthentic or forged documents by either. If Moderna is not spelled right, and Pfizer is not spelled out, that should be a red flag or if the dates don't really match up. Employers need to satisfy themselves that it's an authentic card.
Vaccine Information and HIPAA
If an employer asks an employee, “I need to know if you're vaccinated,” there's no HIPAA issue there. If an employee says, “That violates my HIPAA rights,” that's just wrong. If the employee says, “I'm not going to tell you,” the better response would be to say, “If you can't show us proof of vaccination, we're going to have to regard you as unvaccinated.”
Using Technology for Vaccine Tracking
Engage by Cell has an amazing tracker which I absolutely love. Tracking this data is something that traditionally people probably would have taken a more manual approach to it. But if you're leveraging technology to the best of your ability, then you're actually cutting back on labor dollars. It's something that can be measured, and as a result, it's something that can be justified.
Employees Threatening to Quit Over Vaccine Mandates
The biggest part when talking to these individuals is being able to validate their feelings. Once an individual feels that they're validated, the conversation often becomes de-escalated. Next, for critical positions, evaluate why those employees are working for you. What distinguishes your company from another company? Then maybe provide some incentives and engaging events. People stay with companies because they love the culture.
OSHA Penalties for Noncompliance
OSHA may be looking to make an example out of some companies that haven't taken this mandate seriously enough. So everybody should be very serious about preparing now. Organizations are going to need to respond to employee complaints. It's another reason why it's important to keep employees engaged and communicating with them, as opposed to them feeling like they have to go someplace else to vent.
Notifying Employees of Exposures
Be careful that it's not a mass email, because you're just going to scare the entire staff. Be cautious and do not disrupt the workplace. Follow the contact tracing, so it's a need to know. Do not provide information as to the individual person. Your messaging is, “You may have come in contact with an individual that has either been exposed or has COVID.”
Be Prepared. Start Now
Be prepared. Don't sit back and wait. Some HR professionals are waiting to see if the mandates are overturned. I would not do that. It's better to be prepared and proactive than being reactive. Guide your team and company in the right direction.