Reprinted with permission from the “Legal Monthly Minute July 2021” Newsletter.

There’s been a lot of discussion lately about coronavirus vaccine mandates in the workplace, much of it stemming from the Biden Administration’s announcement in September that it would require all businesses with 100 or more employees to ensure their staff are vaccinated or tested weekly for COVID-19 starting in January. The measure was intended to be enforced by the Department of Labor’s Occupational Safety and Health Administration (OSHA). In addition, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services announced a requirement that healthcare workers at facilities participating in Medicare and Medicaid must be fully vaccinated. The last federal ruling was an Executive Order issued by President Biden that requires federal employees and contractors to be fully vaccinated to work and perform on government contracts.

Each of these requirements created a deadline for vaccination of Jan. 4. However, the 5th Circuit Court of Appeals recently issued an emergency stay relating to the OSHA requirement. There’s also been a lawsuit filed by 10 states in the federal court in Missouri challenging the CMS rule and seeking to enjoin its enforcement.

Separate and apart from the conditions issued by the federal government, multiple states have issued their own vaccine guidelines relating to the public use of restaurants, movie theaters, gyms, performance venues and other locations as well as the healthcare and public-education industries. Others have specifically prohibited the right to issue any vaccine mandates within their borders. All this has led to significant confusion as to the right of private employers to require vaccines in their workplace.

Creating Your Own Policy

As it stands, there are no federal vaccination requirements for private employers with fewer than 100 employees. However, unless your self-storage business operates in a state that prohibits employer mandates, such as Montana and Texas, you can create your own rules and policies.

Just remember, whatever vaccine policy you create should be put in writing and include an exemption for any employee who provides a valid reason related to disability or religion for not getting vaccinated. It should also outline a protocol for handling reasonable accommodation requests. It’s currently prevalent for employers who are seeking protections in the workplace to require staff to provide proof of vaccination or submit to weekly COVID testing and always wear a mask at work.

Safe Hiring Practices

For companies that are hiring, the prevailing opinion is they can ask an applicant if they’ve been vaccinated. The Equal Employment Opportunity Commission has stated that asking a person whether they’ve received the COVID vaccine is not a disability-related inquiry under the Americans With Disabilities Act (ADA). However, the employer can’t ask any follow-up questions, as those may likely violate the ADA or Title VII of the Civil Rights Act.

It’s recommended that any job postings include the notice that vaccination is required, for example, “This position requires that you be vaccinated against COVID-19 unless you request a reasonable accommodation for health or religious purposes.” After the job is offered, an employer can ask for a verification or begin the process of working out a reasonable accommodation for someone with an allowable exemption.

The impact of COVID in the workplace is far from over, even though the apparent risk of contracting the virus has declined. The vaccine-mandate issue is one of the many facing employers for the first time. The courts have only begun to address the rights of companies to protect their workplace and that of employees who aren’t yet prepared to return to work due to fear of contracting the virus.

The answers to these questions will continue to evolve over time. If you’re looking to create a vaccine mandate for your self-storage-related business, it’s best to seek legal advice and be prepared to be flexible to accommodate your employees.

Scott I. Zucker is a founding partner in the Atlanta law firm of Weissmann Zucker Euster Morochnik & Garber P.C. Practicing law since 1987, he represents self-storage owners and managers on legal matters including property development, facility construction, lease preparation, employment policies and tenant-claims defense. To reach him, call 404.364.4626, or email [email protected].