There has been a lot of discussion lately about the issue of vaccine mandates in the workplace. Much of this has evolved from the Federal Department of Labor’s Occupational Safety and Health Administration’s (OSHA) announcement requiring that employers with 100 or more employees ensure each of their workers is fully vaccinated or can provide negative tests for COVID-19 on a weekly basis. On top of that, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services announced its requirement that health care workers at facilities participating in Medicare and Medicaid must be fully vaccinated. The last federal ruling was an Executive Order issued by President Biden requiring that federal employees and federal contractors must be fully vaccinated in order to work and perform on government contracts. Each of these federal requirements created a deadline for vaccination by January 4, 2022. 1
Separate and apart from the requirements issued by the federal government, multiple states have issued their own vaccine guidelines as to the public use of restaurants, movie theaters, gyms, performance venues and other locations as well as in industries such as health care or public education. At the same time, other states have specifically prohibited the right to issue any vaccine mandates in their states. All of this has led to significant confusion as to the right of private employers (non-state, non-medical workers) to require vaccines in their workplace.
As it stands now, there are no private employer requirements relating to vaccine mandates for companies with less than 100 employees. As it applies to self-storage, unless your facility is in a state that prohibits any employer mandates (for example Montana and Texas), you can create your own rules and policies. However, whatever policy you create, it is clear that any mandatory vaccine policy 1) should be in writing; 2) must include an exemption if an employee provides a valid disability-related or religious reason for not getting vaccinated; and 3) should have a protocol in place for handling reasonable accommodation requests. It is prevalent for many employers who are seeking protections in the workplace to require their employees to either provide proof of their vaccination or require they submit to weekly testing for Covid-19 and wear a face mask at all times in the workplace.
For companies hiring employees, the prevailing opinion is that companies can ask an applicant if he/she has been vaccinated (EEOC has stated that asking employees whether they have received the COVID-19 vaccine is not a disability-related inquiry under the ADA), but the potential employer cannot ask any follow-up questions, as those may likely violate the ADA or Title VII of the Civil Rights Act.
It is recommended that any job postings include the notice that vaccination is required, something similar to "this position requires that you be vaccinated against Covid-19 unless you request a reasonable accommodation for health or religious purposes." After the job offer is given, an employer can ask for a verification of vaccination or can begin the process of working out a reasonable accommodation for someone with a medical or religious exemption.
1 The 5 th Circuit Court of Appeals recently issued an emergency stay relating to the OSHA requirement for employers with 100 or more employees. There has also been a lawsuit filed in the federal Court in Missouri by ten states challenging the CMS rule and seeking to enjoin its enforcement.
The impact of Covid-19 in the workplace is far from over, even though the apparent risk of contracting the virus has declined. The vaccine mandate question is only one of the many issues facing employers for the first time. The Courts have only begun to address the rights of employers to protect their workplace. Similarly, the Courts have only begun to address the rights of employees who are not yet prepared to return to work due to the fear of contracting the virus. The answers to these questions will continue to evolve over time. At present, if you are a self-storage operator seeking to create a vaccine mandate for your facility, it is best to seek legal advice and be prepared to be flexible in order to accommodate your employees.
This article was originally published by Scott Zucker, November 2021.
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