Kellie G. Olah
SPHR, CVPM, SHRM-SCP
HR Huddle columnist Kellie Olah is the practice management and human resources consultant at Veterinary Business Advisors. The company provides legal, human resources and practice management services to veterinarians nationwide. Olah is a certified veterinary practice manager, a certified veterinary business leader and a nationally certified senior professional in human resources.Read Articles Written by Kellie G. Olah
Few people would object if their employer offered them free gym memberships or voluntary access to a smoking-cessation program. Their reactions might be quite different if certain health benchmarks or controls were made mandatory.
All this raises the question of when an employer can require someone to get a vaccine, for example, or stop smoking, lose weight or abstain from activities that are legal outside the workplace.
Here is guidance on three such topics.
Get a COVID Vaccine
Given that multiple COVID-19 vaccines are either in use or on the horizon, the question of whether employers can mandate vaccination is a hot topic.
In general, the answer is yes. Vaccinations can be required if employers appropriately weigh requests for religious or medical accommodations. More specifically, employers should consider:
- Religious accommodation requests under Title VII of the Civil Rights Act of 1964. How a “sincerely held religious belief” is defined depends on the court. In general, personal or ethical objections to a vaccine are insufficient and, even if such sincerely held beliefs are established, an employer can mandate vaccination if the lack of one would create an undue hardship for the company.
- Medical accommodation requests under the American with Disabilities Act. Employees who work at a company that requires a vaccine and who want a medical accommodation must show evidence of a disability covered by the ADA. In the case of vaccine sensitivity or an allergy, court decisions are split.
If, after examining the pros and cons, your veterinary practice plans to mandate vaccination, carefully write a policy so that employees are clear about what’s required, including the process for requesting an accommodation or waiver. When vaccination time draws near, be prepared to address employee requests thoughtfully and consistently, and then document what takes place.
Overall, people who smoke are sick more often and take more sick days. Because of that, they tend to use their health insurance more often than non-smokers do. They also might take more breaks at work, usually to smoke.
Companies concerned about how smoking can affect worker absenteeism and productivity might implement a mandatory smoking-cessation policy. A veterinary practice, for example, might give team members a time frame to stop smoking and, to help, cover the cost of a smoking-cessation program. Companies that provide worker health care benefits might be more likely to require enrollment in such a program because employees who smoke are more expensive to cover.
Is it legal? As far as federal law goes, the issue hasn’t been addressed. So, to discern whether your practice could implement such a policy, look at your state laws — specifically at “lifestyle discrimination” or “off-duty conduct” laws. In some states, employers cannot dictate whether an employee may engage in a legal activity on their own time away from the workplace. In states where such laws don’t exist, your practice might be able to mandate that employees stop smoking as a condition of continued employment.
What about workplaces that require employees to manage their weight, either because of health concerns or a fear that being overweight projects the wrong image onto the company?
First, weight is not a protected class under federal law, unlike race, age, gender and so forth. So, employers can legally fire overweight employees. Having said that, if an employee’s weight qualifies as a disability, terminating the person might constitute disability discrimination under the ADA. Plus, if a company did fire overweight employees and disproportionately affected those of a particular gender or race, the legality could be in question.
It’s important to look at state and municipal laws to see if they provide anti-discrimination protection for employees. Michigan and a few cities, including Washington, D.C., and San Francisco, protect employees from weight discrimination. Because new laws are passed all the time, check your jurisdictions before you create a policy that might run afoul.
If your practice is considering the implementation of a health-related requirement, consult first with a human resources attorney. Once a policy is approved, ensure that everyone in the workplace receives a copy. (Having them sign a document affirming receipt of a copy is wise.) Also, set aside time to discuss the policy with employees and answer their questions.
The Centers for Disease Control and Prevention encourages employers to implement programs and policies that “meet the health and safety needs of all employees.” These can include offering health education workshops and access to fitness gyms, having a tobacco-free workplace, providing healthy snacks, and creating an environment that values health and wellness.
If your practice is looking at something similar, first do an assessment and then select a program that would meet your employees’ needs. Monitor the results and make needed adjustments to ensure optimal success.