There are employment rights and HIPPA medical regulations, but COVID-19 is blazing a trail that might surprise you when it comes to your options.By John Shumway

PITTSBURGH (KDKA) — Employers and employees are facing a critical issue. How does a place of business bring people back to the workplace when some are vaccinated and others are not?

There are employment rights and HIPPA medical regulations, but COVID-19 is blazing a trail that might surprise you when it comes to your options.

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Labor law specialists Bob Daley, of Robert Peirce and Associates, says when it comes to your employer asking if you’ve been vaccinated, “Yes, your employer can ask that. That is not considered a medical exam under either the ADA or under the HIPAA rules. If the answer is no or yes, the questioning needs to stop there.”

As for requiring employees get the vaccination, “The short answer is yes. At least that’s what the federal guidance says. But the employer must also require exemptions for sincerely held religious beliefs or for medical reasons. The employer must take steps to reasonably accommodate and if the employer does not, then the employee could bring litigation in that regard.”

It is important to note that some believe the vaccines cannot be made mandatory until the FDA gives its final approval to the vaccines. All the vaccines are currently authorized under Emergency Use Authorization.

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Among the possible accommodations would be allowing the employee to continue to work from home.

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“But,” Daley says, “if the choice to have a vaccine is simply that you’re an anti-vaccine person, or you don’t trust the vaccine, then there’s no requirement on the employer’s part to give a reasonable accommodation.”

Daley says an employee could be terminated over this because Pennsylvania is an “at will” state. Meaning you work at the will of your employer, and as long as the decision is not discrimination, termination is possible.

“I think the best way to approach it is to incentivize. Give employees paid time off to get the vaccine, perhaps gift cards to get the vaccine. All of these things are legal under the law and in incentivization and encouragement is the better way to go,” Daley said.

Two lawsuits have already been filed, in New Mexico and California, over vaccine mandates, which doesn’t surprise Daley.

“Right now, the federal guidance is, you are allowed to mandate, but undoubtedly that mandate will be tested down the line,” he said.

But employers are in a tough spot because if someone catches COVID-19 in the workplace, Daley says, “The employee could have a workers compensation claim for contracting a disease at work.”

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So employers have to walk a fine line.