Parking sign for vaccine clinic

Just Mandate Already!

Folks, it seems pretty popular to mandate vaccination or require those who refuse to get vaccinated to get tested regularly.  The Biden Administration allows this for federal workers. [NOTE: Minutes after I posted this, the Biden Administration announced it will no longer offer a testing option for federal employees. Now, all federal employees must be vaccinated.]  Minnesota and Minneapolis allow this too.  But, this get-vaxxed-or-get-tested bargain is awful for HR professionals. 

Let me count the ways:

  1. Potentially huge cost.  First, you must pay for employee to go get tested EACH time the employee gets tested.  If sending to a free testing facility, that could be hours of time paying an employee to wait in line and time spent traveling to the site.  Second, if the employee isn’t going to a free testing facility, the employer has to pay for the tests.  If an employee visits clients and a client specifies what test results (Antigen or PCR), you may have to spend a lot for tests.
  2. Huge administrative burden.  HR is going to have to keep track of who is testing, their test results, and send reminders to get tested.  Who is testing and the results are medical information protected by the Americans with Disabilities Act, so this information can’t be handled by just anyone.  It also has to be secured and shared with only those individuals who need to know.
  3. Now HR is the bad guy.  Now, I know we’re used to being the bad guy, but HR is going to end up being the person who nags the vaccine-resistant employee to get their test.  If they miss a test, we have to nag and suspend the employee until they get their test.  This makes us a target for the already angry, vaccine-resistant employee. (Come on, you know they’re an angry bunch.)

If it’s expensive, somewhat challenging to track, and we’re the bad guy, why not just mandate the vaccine in the first place?  Wouldn’t that be easier and faster given the vaccine is available and free almost everywhere and at least one vaccine – Pfizer-BioNTech has full FDA approval?  Even the EEOC allows vaccine mandates!  See Section K.

Yes, you need to provide reasonable accommodation for religion and disabilities. As an employer, you get to ask for information to support the reasonable accommodation.

For religion, ask for a letter from the employee’s faith leader outlining a need for a mandate exemption.  Note, nearly every major religion is encouraging members to get vaccinated.   The Abrahamic religions support vaccines: the leaders of the Christian (Catholics, Methodists,  Baptists, Southern Baptists, Mormons, Episcopalians, Pentecostals), Jewish, Muslim and Bahá’í faiths have all encouraged members to get vaccinated. The four branches of Hinduism, Sikhism, and Buddism also encourage vaccination.  Jehovah’s Witnesses are not opposed to vaccination. If you get a letter from an employee that contradicts these religious directions, ask the employee about it.

For disability, ask for a letter from the employee’s healthcare provider.  (We’ve done this for decades, right?)

If a reasonable accommodation is warranted, then you’ve got options.  You could put those who need an accommodation out on leave like United Airlines did because then, the employee is not posing a risk to their colleagues or customers.  Or you could give the employee the option to test twice weekly and go through the rigmarole described above.  Or the employee could work from home if that’s feasible for the position.  This should greatly reduce the administrative and cost burdens and provide a safer work environment for your staff. Lastly, I get that you’re worried that employees might quit.  But do you really want people who are not concerned with protecting their colleagues and their families working for you?  That’s what this comes down to.  With Pfizer-BioNTech having full FDA approval, there is no nonselfish reason to avoid vaccination.  We’re in this together, and the only way out is vaccination.  The experts tell us so.

Photo by Joshua Hoehne on Unsplash

Executive Order on Diversity Training Gets A Lawsuit

Today, the NAACP Legal Defense Fund initiated a lawsuit against President Trump, Labor Secretary Eugene Scalia, and the Department of Labor over Executive Order 13950, otherwise known as “Executive Order on Combating Race and Sex Stereotyping.” Purported to keep un-American concepts like white privilege, implicit bias, and any subject that may cause someone to feel guilty out of diversity training for federal contractors, the EO guts these fundamental concepts from training designed to make our workplaces more inclusive. Coming from a President who failed to condemn white supremacy when given the opportunity at a presidential debate, the EO does not hope for an end to discrimination and harassment or even bring Americans together.

The lawsuit is based, in part, on the First Amendment. As you all know, the First Amendment prohibits the government from abridging the freedom of speech. Here, the EO prohibits some kinds of speech by federal contractors in their diversity trainings. The lawsuit looks like it has merit on this point. But, it will take some time to work its way through the courts.

Quite frankly, the EO was designed to end diversity training. Period. And, it has been effective. An October 13 New York Times article described how human resources departments have been quick to scrap plans for training. The State Department and USAID – the agencies charged with sending Americans to all corners of the world to represent our interests and help struggling countries – ended their diversity training.

Even the biggest pro-business group out there, the U.S. Chamber of Commerce, thinks the EO is a bad idea. Along with over 150 groups, the Chamber sent an open letter to President Trump asking he withdraw the EO. Like the Chamber, the Business Roundtable said the EO was “already having a broadly chilling effect on legitimate and valuable” training that makes workplaces better.

Note, the EO only affects new federal contracts entered into after November 21 and quite possibly will be immediately withdrawn if former Vice President Biden becomes President on January 20, 2021. It’s possible that as the lawsuit progresses, the NAACP Legal Defense Fund will request an injunction to prevent the EO from going into effect. Stay tuned!

Diversity training that addresses concepts like harassment, microaggressions, and bias is essential to creating workplaces that are inclusive, innovative, and effective. Before you press the breaks on training for your org, consider what message that sends.