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Montana Releases FAQs on Vaccine Discrimination Law
- Asking Employees About Vaccination Status: The FAQs clarify that nothing in the law prohibits employers from asking about vaccination status or whether an individual has an immunity passport. A person is not, however, required to respond to such inquiries and may not be discriminated against for not responding.
- Vaccination Incentives: According to the FAQs, employers are in fact allowed to offer incentives to employees to become vaccinated voluntarily, so long as the nature of the incentive is not discriminatory (“not so substantial as to be coercive”). It states, “[f]or example, an incentive in the form of a small gift, such as a water bottle or gift card worth less than $25, is generally not considered discriminatory.” The FAQ then points to EEOC Guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws for further guidance on the topic. Thus, it is reasonable to assume that as long as the vaccine incentive is modest, it will pass muster in Montana.
- Requiring Masks in the Workplace: The law prohibits employers from discriminating against unvaccinated workers—or those who choose not to disclose vaccination status—by requiring them to wear masks on their premises or during the course of employment. In an interesting twist, the FAQs clarify that employers may indeed ask, request, or even require that everyone on their premises or during the course of employment wear masks, regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.
- Healthcare Facilities: The law permits healthcare facilities to ask their employees to volunteer their vaccination status, and to assume an employee who declines to provide their vaccination status is not vaccinated. If a healthcare facility determines an employee is not vaccinated, the facility may implement “reasonable accommodation measures to protect the safety and health of employees, patients, visitors and other persons from communicable diseases.” The FAQs indicate that the reasonable accommodation measures imposed by a healthcare facility to protect and promote safety and health may include a face covering requirement for all employees, patients, visitors, and other persons who are unvaccinated or non-immune or assumed to be unvaccinated or non-immune. Alternatively, the healthcare facility can simply choose to require everyone to wear masks on the premises regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.
Seasonal Workers
Competition is again stiff this year for organizations looking for seasonal workers, and employers are trying a range of tactics to entice job applicants. These strategies include offering hiring bonuses, increasing pay, and waiving requirements such as drug tests or a high school diploma.
Start early and onboard quickly – enough said. Tips to finding them, include:
- Former staff – ask them to return and use them to train new people
- Employee referrals – reward referrals
- Job search engines – seasonal search sites like coolworks.com or seasonaljobs.com
Other idea include retaining your seasonal staff and be sure to bring them back!! Possibly an end-of-season bonus, enticing them to stay. The difficulty in finding seasonal workers has intensified since the COVID pandemic began, as employees exited companies because they were burned out from working long hours, they felt uncomfortable working in public-facing jobs, or they needed schedule flexibility. Need assistance in recruiting your seasonal staff? Reach out, we can help!
Mandating Vaccinations
The recent vaccine mandate from the Biden Administration includes an estimated 80+ million workers. The mandate directs employers of 100 or more employees to require their workers be vaccinated or show weekly proof of a negative COVID-19 test. The rule for private businesses is currently under development by the Department of Labor and is expected to be rolled out very soon. Montana employers should anticipate a ruling following the ETS from the Department of Labor regarding mandating vaccinations.
- What are the consequences of not complying? While getting vaccinated is not a requirement under the mandate, there may be consequences for employees who choose not to get it, largely due to the fact that large employers can end up facing fines of nearly $14,000 per violation. It is expected that many employers will update their Vaccination Policies as a result of the new mandate. Those policies will likely explain that employees who fail to get vaccinated or show weekly proof of a negative test may face disciplinary action, including termination, from their employer.
- Is it legal for the federal government to mandate the COVID-19 vaccine? Yes. The United States Constitution does grant the federal government authority to regulate federal workers, contractors, and certain private employers. The Fair Labor Standards Act is a prime example of a use of this authority. Additionally, there is solid United States Supreme Court precedent to support both state-issued and limited federally issued vaccine mandates during public health crises.
- Who pays for the weekly COVID-19 testing, employee or employer? The new federal mandate doesn’t specify who pays the cost of weekly testing, so this issue will likely be decided by employers, subject to any local or state requirements.
- Are employees protected from retaliation for reporting violations of the mandate? Yes. Under OSHA, as well as other federal and state laws, employees are protected from retaliation for reporting violations or suspected violations. Employers should not fire, demote, harass, reduce scheduling, or do anything else that can be construed as an adverse action against an employee in retaliation for filing a complaint with OSHA or another state or federal agency.
- Do I have to inform my employer if I test positive for COVID-19? The CDC has advised employees to immediately tell their employers if they test positive for COVID-19. In turn, employers may be required to provide paid sick leave to allow employees that test positive or develop symptoms to isolate and seek treatment.