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Hawaii Employer's Guide to
Vaccines & the Workplace

More Resources For Hawaii Employers

Workplace Health Series

Join ProService Hawaii and local medical expert Jake Schafer in our short new video series as we talk about vaccines in the workplace.

Episode 1: The Risk of Avoiding Vaccinations

In our first episode, Jake talks about the state of vaccines in Hawaii, the risks of being unvaccinated, and its impacts on families, workplaces, and across our community.

Episode 2: Vaccine Conversation Tips

Covid Booster Shots, plus Keiki & Vaccines, what to know

In our next episode, Jake walks us through the 3 Rules of Engagement (4:00) for having conversations with employees that have chosen not to get vaccinated.
He also shares with us 7 COVID-19 Vaccine Personas (8:00) employers may encounter. Jake also touches on Natural immunity vs. Vaccines (20:40) and shared 3 Tips to Persuade Employees to Get Vaccinated in what he's termed “Carrots, Sticks & Wrecking Balls” (23:51).

Episode 3: Booster Shots & What We Know About Vaccines for Kids

In our third episode, Jake gives us an update on Hawaii's Progress in the fight against COVID-19 (00:25), plus gives us an inside scoop on the COVID-19 Boosters Shots (3:15).

Jake and Steve also unpack What We Know So Far About COVID-19 Vaccinations for Kids (11:55) in light of Pfizer clinical trial data showing that the COVID-19 vaccine is safe for children ages 5 to 11 years old.

Thanks to questions submitted by viewers, Jake also answers questions about Merck's new antiviral pill (18:05).

Episode 4:
Myth vs. Fact About the COVID-19 Vaccine

Tune in yourself or share this week’s episode with your employees as we unpack the five most common myths about the vaccine, such as:
Myth 1: The COVID-19 vaccine affects fertility (3:09),
Myth 2: It is not safe for those with pre-existing health conditions (7:29),
Myth 3: It is not safe for children to get the shot (11:18),
Myth 4: The COVID-19 vaccines were not rigorously researched (13:59),
Myth 5: Ivermectin is a safe alternative (17:41),
Conclusion: How to find credible sources about COVID-19 (22:01).

Episode 5: Vaccine Conversations

In our fifth episode of “Workplace Health”, Jake gives us an update on Hawaii's progress, best practices for holiday safety, and even shares a personal story and work-related lessons learned from his recent exposure to COVID-19.

Episode 6: Omicron 101

In our sixth and final episode of “Workplace Health”, Jake gives us an update on Hawaii's progress, why our state is doing better than others, and what you need to know about the new omicron variant. 

A Letter from ProService Hawaii CEO:

Why Employers Need to Drive Vaccinations

This is really the key question that we’ve been forced to grapple with, and I have two main reasons. The first is directly related to every employer in Hawaii. Covid transmission and healthcare costs are having a massive business impact…

Ben Godsey, President of ProService Hawaii

Biden's Vaccine Mandate for Large Employers

(aka OSHA's Vaccine Emergency Temporary Standards)

On November 4, 2021, OSHA published an Emergency Temporary Standard (ETS) that establishes minimum COVID-19 vaccination and testing requirements for private employers with 100 or more employees throughout the U.S. Shortly after several states and businesses sued to declare that the rule was unconstitutional. What is the status of OSHA's ETS? Who must comply? And what does it mean for Hawaii employers? Watch the on-demand webinar to find out.

Key Takeaways:

Why It Matters: Even though OSHA has paused its vaccine mandate over court stay orders, the Biden administration is betting that the vaccine mandate will prevail. If the stay is eventually removed, employers may have to rush to comply with OSHA's vaccine ETS. Therefore, an employer’s best course of action is to familiarize themselves with the requirements of the OSHA vaccine ETS and prepare to implement those requirements if the stay is lifted and the emergency rule is revived.

Who Must Comply: All private employers with 100 or more employees.

The Requirements: Vaccine/Testing Rules // OSHA's vaccine ETS requires all employees to be fully vaccinated OR test for COVID at least weekly and wear a face covering. Administration Rules // It also requires employers to 1) Create a written policy on vaccines, testing, and face coverings, 2) Communicate ETS policy requirements and rights to employees, 3) Provide paid time off (up to 4 hours) to get vaccinated, and paid sick leave if experiencing side effects which inhibit work, 4) Maintain records and rosters of employee vaccination/test status, 5) Comply with notice and reporting requirements when there is a positive COVID case.

Click here for additional FAQs

We're Here to Help:

We hope you find a ton of value from our webinar! We're here to help! To request your personal business consultation, click the button below to connect with one of our HR advisors. 

TALK TO US
Webinar Timestamps:

00:00 – Introductions
02:03 – Why It Matters
06:29 – Who Must Comply
13:05 – Who Is Exempt
14:38 – The Scope of the Rules
20:44 – Medical & Religious Accommodations
24:20 – Remote & Outdoor Employees
26:27 – Employer Costs
28:59 – Consequences of Noncompliance
30:50 – Q&A
32:17 – Proof of Vaccination?
35:23 – Medical & Religious Accommodations?
37:03 – Reporting COVID Cases?
41:51 – Employee Lawsuits?
44:12 – Outdoor Employees?
37:03
 – Key Dates?
41:51 – Healthcare Facilities?
44:12 – Medical Recordkeeping?
57:20 
– Who Pays?
1:00:02 – COVID-19 Testing?

Click here for the slide deck

Vaccines & The Workplace Webinar

About the Webinar:

In this webinar, you'll learn about vaccine policy options for Hawaii employers, as well as best practices/tips for implementing your vaccination policy. Recorded September 15, 2021. 

Quick Links:

To get vaccine content in other languages:

To find a free vaccination site:

To find a free COVID test site:

We're Here to Help:

We hope you find a ton of value from our webinar! We're here to help! To request your personal business consultation, click the button below to connect with one of our HR advisors. 

TALK TO US
Webinar Timestamps:

0:00 Welcome and introductions

1:51 Part 1: What vaccine policy is best for my business?
2:49 Two Policy Options: 1) Mandatory 2) Vaccinate/Test
07:19 Unvaccinated (Medical or Religious Exemptions)
09:52 Unvaccinated (Personal Reasons)
15:19 Pros and Cons of Policy Options
20:37 How to Choose a Policy

27:23 Part 2: How do I operationalize my policy?
27:40 Communication
31:20 Confidentiality
32:32 Vaccination Status
40:27 Vaccine Incentives

42:52 Conclusion

More Resources For Hawaii Employers

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Schedule a free consultation with an HR adviser today.

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Vaccines & the Workplace Webinar Transcript

Welcome and Introductions

Aloha and welcome to our webinar, Vaccines and the Workplace.  The purpose of this webinar is twofold. First, to help you choose the best policy for your business and then second, once you know your policy whether you choose it or are following a government order, we will help you work through the difficult implementation. So, let's jump in.  Let's start with introductions. My name is Steve Seto, and I'm the Vice President of Brand Marketing, a ProService Hawaii.  I'm pleased to introduce my partner, Linda Goto Ph.D. Linda leads the ProService Hawaii Client Training and development team.  She's an entrepreneur, having owned and operated multiple businesses on her own. She has also served as an in-house corporate HR director in a corporate setting.  Through all these diverse experiences, Linda brings deep experience that is particularly relevant for the topic today, including organizational development, training, compensation, critical labor negotiations, and conflict resolution. Linda, I'm delighted to be partnering with you on this. Lastly, what we'd like to make everybody aware of is you can see the URL at the bottom of the screen. Please go to that URL. You might even want to bookmark it. That is our COVID Vaccination Resource Center, for everything you need regarding vaccinations. We will post and update the latest state and federal government orders there as they come through. As always, we will continue to update and create new tools that will help you choose the right policy and templates to write, communicate, confidentially track, enforce your policy, and how to show proof of compliance with government orders. So please find all these tools by going to the URL at the bottom of the screen.

Part 1: What Vaccine Policy is Best for my Business?

Okay, so let's jump in. So Linda, could you define the policies for us? Yes, Steve, I can. There are actually two policies, but I will talk about a third one quickly. The third one I'm going to mention is the Voluntary policy, which is actually a non-policy, and we're only mentioning it one time as a cautionary tale of what not to do. This was the policy that most employers put into place when Covid-19 first emerged onto the scene. It preceded the time of Covid Vaccinations as an option so it was the original set of standard operating procedures on Covid in the workplace. As many of you remember, it's the rules about masking, social distancing, PPE's, quarantines, outbreak guidelines, things like that, but obviously nothing about vaccinations. Some employers have retained this non-policy despite the free, easily accessible options to get vaccinated. We don't recommend this and neither does Mayor Blangiardi for those of you watching from Oahu

Two Policy Options: 1) Mandatory 2)Vaccinate/Test

This brings us to our first two recommended policies, which we will refer to as the Flex Vaccinate or Test policy. I might refer to it as the Flex policy, for short, this is the one on the far right for your context. For those operating out of Oahu, this policy actually mirrors the Mayor’s Emergency Order, implementing the Safe Access Oahu program on September 13th which requires all employees, contractors, volunteers, and businesses; such as restaurants, gyms, movie theaters, museums, arcades and other similar, I would say ‘closed establishments,’ to show full proof of vaccination against Covid-19 or a negative Covid-19 test result each week in order to operate. The option is more flexible than a Mandatory Vaccination policy, which we will discuss shortly, and the basis of continued employment does not hinge on a vaccination status, It actually allows for an alternative option to undergo weekly testing.  Under a Flex policy, your employees can choose whether to vaccinate or test, and you can either continue normal work activities, including those which require in-person contact with others, or you can play logistical Tetris and change up operational work activities to minimize or eliminate in-person contact. What this means is that you're actually free to instate a work from home option, you're free to instate an alternate worksite option or schedule, or a reassignment. So under the Flex policy, employees who normally qualify for medical or religious exemption under a Mandatory Vaccination policy might actually opt-out and not go through the hassle of a reasonable accommodation process and simply undergo a weekly test. On the other end of the spectrum, a Mandatory Vaccine policy requires that all employees be vaccinated in order to work for your company, so the most vulnerable among your workforce and in the community are protected. Federal and state law does, however, require you to determine if there are reasonable accommodations that need to be made for employees that properly request a medical or religious exemption to this policy. If reasonable accommodations cannot be made or the employee does not accept your offered accommodations in full, you may place them on indefinite leave without pay or separation. All the other employees must also follow your policy in full or face indefinitely without pay separation. Linda, you mentioned that if a reasonable accommodation cannot be made, that I thought was a very interesting point.  Can you elaborate on that more and perhaps talk about under what circumstances an employee might be denied reasonable accommodations? Sure, Steve, an employer is not required to make an accommodation if it would impose what is known as an undue hardship of the operation of the employer's business. So, what's an undue hardship? It's defined by the American Disabilities Act as an action requiring significant difficulty or expense when considered in light of a number of different factors. So, these factors include the nature and cost of the accommodation of relations to the size, the resources, the nature, the structure of the employer's operation, and an undue hardship is actually determined on a case by case basis. It's also important to keep in mind that you cannot circumvent a reasonable accommodation process at any point, even if you believe that by allowing your employee medical or religious exemption will impose undue hardship on the business.  I think a key takeaway is to remember that you have to go through the interactive reasonable accommodation process. You have to talk through different options with your employees who qualify for the exemption, and then only after exhausting all of these different options or not being able to find any kind of suitable options. Only then can you either separate or put an exempt qualified employee on indefinitely without pay.  Another important takeaway is that you have to be consistent about the application of reasonable accommodation or undue hardship. For example, you can't cherry-pick if one person applies for a medical or religious exemption and someone else also applies, you can't cherry-pick and keep one employee and not the other. It's either you keep all your employees and have the capability of allowing for accommodations in your workplace or you would impose, I would say, due to undue hardship on your business, you would not be able to accommodate these employees.  But it's important to remember to be consistent and to not allow one person accommodation and another person, not an accommodation.

Unvaccinated (Medical or Religious Exemptions)

So as a follow-up, I just want to make sure I was completely tracking here, Linda. So, an employee of mine comes to me,  I'm going to play the employer now, comes to me and says due to a medical reason, they choose to not vaccinate. I am obligated by federal and state law to go through your reasonable accommodation analysis or effectively I'm trying to figure out what of their job activity can be done with zero risks, remotely or whatever. And if I can come up with things that they can do that minimize or ideally eliminate any in-person contact, I sit down and suggest that to them.  If I cannot, so the first scenario is I do come up with examples, I sit down with the employee.  And for example, the employee, if they agree, great, they're going to work 100% percent remotely or they might say no.  In that instance, I as the employer am allowed to then put them on indefinitely, unpaid, or separate them because they did not accept the reasonable accommodation that I offered. Is that correct? Well, Steve, in a little bit further on, we are going to talk about how a business would make an assessment on which policy to impose, and if, in fact, they do impose a Mandatory Vaccination policy, which is the least flexible of the two recommended policies. This would require employees to get vaccinated or to, I would say apply or to be qualified for a medical or religious exemption. And the reason that this is important, Steve, is that you, as a business owner, need to make an assessment about whether your business could actually handle any kind of accommodation or any kind of change to work schedule, any kind of remote work, any kind of alternate shift work.  It might not be able to accommodate such a change. This is sort of a part of that figure analysis piece that a business owner has to go through in order to determine whether a reasonable combination can be made. But I would say look at the business needs rather than look at the specific job itself and look and see whether the business can actually sustain the further employment of this individual if they make certain changes to their working conditions.

Unvaccinated (Personal Reasons)

So, it's interesting and an important issue for employers to consider. If an employee is choosing to not vaccinate due to a medical or religious reason, let's look at what probably might be the more common situation for those employees that choose to not vaccinate for other personal reasons. What rights does the employee have? What rights does the employer have and what does ProService Hawaii recommend the employer does about it? That's a very interesting question, the whole question around what rights do those who choose not to vaccinate due to personal philosophical reasons? What rights do they have, if any? So, let me backtrack a little bit, Steve, and reiterate the fact that if an employee qualifies for medical or religious exemption, then he or she is protected under federal and state law under the Americans with Disabilities Act, ADA, and the title seven of the Civil Rights Act, respectively. And anti-discrimination protected status guidelines are readily available by the EOC for employers to navigate. If, however, you have an employee who doesn't fall under what I would call a protected category by coming on record, requesting an exemption, and going through the reasonable accommodation process, and he or she simply has, let's say, a philosophical viewpoint about the vaccination or personal view, and if that is hindering him or her from receiving it, then such an employee has no protected rights apart from the employer's basic responsibility to safeguard his or her medical information in general, even outside of the context of Covid-19, If the employer has access or is privy in medical information that always has to be kept confidential, the employer has a fiduciary responsibility to protect employees and for medical information at all times. But the employer has more freedom now, especially from, I would say, potential discrimination liability to impose work policies that would appear otherwise discriminatory If you were dealing with an employee who filed for an exemption. Linda, you just brought up another important nuance that I think we probably want employers to know about under specifically the Flex vaccinate or Test policy. If there is a situation where an employee chooses to not vaccinate due to a medical or religious reason, but for whatever reason, they'd rather not talk about it, broadcast it even confidentially to the employer. Or, as you highlighted earlier, it's easier for them to not go through all the paperwork to claim and qualify for the exemption under the Flex vaccine or Test policy Irrespective of the reason to not vaccinate, they will be accorded certain flexibility by the employer. But it sounds like while it makes it easier and perhaps more comfortable for the employee, it also provides more potential flexibility for the employer. Is that correct? Yes, that is correct, because if someone chooses not to step forward and apply for an exemption to go on record or even to go through the process for an exemption, the employer has no idea that he or she even has a medical religious circumstance. So, if someone chooses to sort of opt-out of that and just decide to get tested weekly, and maybe for whatever reason, maybe they don't want to come forward and go on record about having any kind of medical condition or anything like that. But if they choose to opt-out that way and they are not technically protected in the sense that the employer doesn't have that responsibility if they don't know that they need to have their protected category. So, essentially anybody, and it's not just people who need the medical religious exemption, anyone in general, even those who qualify for who have a personal or philosophical viewpoint on the issue. If they are simply getting tested weekly and for whatever reason, then this means that the employer doesn't really have that as much as I'd say, an obligation or they don't have to deal with sort of the adverse action from a discrimination perspective of safeguarding the protected status of somebody with an exemption. So, this means that the employer could, I would say, theoretically, actually impose, I would say, like a work policy and have more wiggle room to and improve certain changes to working conditions without it appearing to be what would otherwise look as somewhat discriminatory if you're dealing with someone who qualified for an exemption. So, having said that, Steve, I do also want to put out a little bit of a disclaimer, I think is really important for employers to understand, regardless of whether you want to impose a Flex policy mandatory or not, an employer cannot restrict or suggest what options someone would like to take regarding medical religious filing. Regardless of the policy that you choose to offer, you have to allow the possibility for somebody to file for a religious exemption because we're operating under assumptions here.  The way I've been talking about it, that under the Flex policy, nobody would come forward with an exemption. And that isn't true because somebody might actually prefer to go through a reasonable accommodation process and file for this exemption, regardless if you have a Flex policy or mentor vaccination policy. So, I just wanted to also sort of give that disclaimer because I think it's an important point to mention.    

Pros and Cons of Policy Options

So, to recap, ProService Hawaii recommends one of two policies, the Mandatory Vaccine policy, which is a very strict policy, truly require 100% vaccination of employees that deal with in-person contact or the flexible vaccine or Test policy, which is the balance of health and safety with employee choice and it may require significant changes to operations. Linda, can you talk us through the pros and cons of each of our two recommended policies? Sure. Okay. Let's start with the pros. While we always want to err on the side of caution and always encourage vaccination when possible, we do understand that many employers are trying to strike a balance between the difficult practicalities of health and safety, with employee retention and productivity to maintain the board and momentum of their business with the minimal disruption to the labor force, if at all possible. Right. The Flex policy strives to encourage and incentivize vaccinations, also enabling most employees to continue working missions and Moses turnover. This is also the most practical policy to implement across hybrid settings. But a potential con of this policy is that it also requires very thoughtful and potentially time-consuming and sort of analytical planning because there are different things away. Another kind of this policy is that it will require employers to cover the cost of weekly Covid-19 testing, plus scheduling time for their employees to get tested during 4 hours. Another potential contest is that it could even need complaints from vaccinated employees who might see the additional time and money spent online vaccinated employees. That's sort of a reward for bad behavior. And again, going back to my earlier point about the need for thoughtful planning, this would require the employer to create a sort of a counter incentive program that rewards activated employees. In comparison, a Mandatory Vaccination policy provides the clearest, most proactive protection to avoid the community spread of COVID-19 amongst your employees, consumers amongst your employees, customers, and vendors in our community. This policy is the most straightforward to communicate and implement. It doesn't require varying logistics based on Vaccination status or changing up work schedules too much unless employees actually have a medical or religious exemption and then an accommodation needs to be put into place. It's generally well suited for both in-person and remote workplaces. And if your employees are particularly concerned about health and wellness, they can also minimize turnover risks from this group as well. So, when it comes to manager Vaccination policy, the most significant consequence comes down to policy enforcement and whether you'll impose on paid fees without pay or separation. If employees don't comply with your policy. And I think that this is probably one of the toughest points, the toughest things to deal with for employers. So, two likely examples could be for those who don't want to get vaccinated. You might have unvaccinated employees with medical or religious exemptions who actually don't comply with the reasonable accommodations. Maybe they expect something different or they don't want to go with the route that the employer is suggesting. Or maybe quite frankly, you might have employees who just simply reject the Vaccination altogether. So, are you willing to part ways with these employees? Each business has to consider the consequence of the turnover and how the turnover will have on their operations during the labor shortage and its impact on separated employees who might not qualify for unemployment benefits. So, next, what I'd like to ask you, Linda, is how might a business consider choosing between these two policies? What factors does ProService Hawaii recommend they consider in making their decision? And I guess here also, the caveat is ProService Hawaii will continue to keep Hawaii employers updated on the evolving landscape of government orders to reiterate the current safe Oahu access policy is an example of a Flex vaccinate or Test policy, but in fact, many employers, restaurants, and clients of ProService Hawaii are choosing to self impose a stricter Mandatory Vaccination policy. Equally important is President Biden's National mandate of certain types of employers who are required to follow a Mandatory Vaccination policy. We are looking into information on that, and as soon as we have specifics, including compliance requirements and the date it goes into effect, we will, of course, update all these materials for you. But still, we believe that many Hawaii employers are empowered and not yet covered by a certain government mandate such that the employer can actually choose which policy to Institute for their own business.  For those employers, Linda, if you could walk us through the factors that we recommend they consider in choosing between each of these policies.

How to Choose a Policy

I think that's the million-dollar question, right, Steve? It's a very crucial and very important question because a lot of you are going through that tough decision-making right now and which ones to implement. So, I'm happy to walk you through that. Each organization needs to conduct its own internal assessment of the size, the resources, the nature, and the structure of the operation in relation to each policy that I just walked through. But I'm happy to share some pointers; maybe that could be helpful to employers making these assessments. So, I think that we can start off with the Flex Vaccination or Test Policy, and in which context would that actually work well? So, it would work well I think in organizations that have a mixed workforce where some positions can actually be done remotely and others require in-person contact or some hybrid mix. It would also work well where you have changed in operations to minimize in-person contact where that is actually feasible, right?  So, you can actually play around with things logistically and figure out a way to initiate remote work, or off-hour schedule change, or task reassignments, or location changes, things like that. So, when we talked about logistical Tetris, this is sort of what I mean.  You have to take a look at your organization, your business model and see how you can kind of move things around. And even to the point where I talked about task reassignment, you can even do an actual job reassignment during this period. It could be a temporary or full reassignment to move somebody to a position that can then be able to accommodate these changes in working conditions. So, the employer has a lot of flexibility to change things up, but this is why we keep saying that they need to have thoughtful planning behind everything. And then three, where an employer has already conducted a survey, and they sort of wanted to gauge employee’s sentiments around getting vaccinated.  The Mandatory Vaccination policy, as we know can be kind of a hot topic, and so they've already conducted the survey, and they sort of gauge the feelings and as a result, they already anticipated avoidable turnover. So, they realize that there are employees in the organization who might consider leaving before getting vaccinated. And so they have to actually assess that and determine whether they could avoid turnover or not. If the turnover is avoidable, then we might also recommend a flexible policy. So, some industry examples might include professional services, construction, especially since a lot of construction is outdoors and can be socially distanced. And even some restaurants could choose a Flex policy as well, which we can talk about that a little bit later on.  Let's switch gears a little bit and talk about a management vaccination policy. This would work well in organizations where employees work or service vulnerable populations. And I'm referring to immunocompromised, sick, elderly, and unvaccinated children. Also, core business operations that require in-person contact or working in close quarters. And again, you never know when someone is maybe immunocompromised, or might have some sort of condition. So, to that extent, that's why we're saying anything that has that sort of close interaction to minimize that.  We as an employer are prepared to handle potential employee turnover, and if they could, they might want to choose the mandatory vaccination policy as well. And some industry examples could include health services, daycare services, and also restaurants could also choose a stricter policy. So, Linda, you spoke about choosing the best policy based on an assessment of your business operations. And so, can you provide an example in which, within one industry, where possibly one employer might choose one policy and a different employer might choose another policy, again within the same industry, for example restaurants, based on their business operations?  Sure. Let's go with the restaurant industry.  I am happy to provide another perspective to add to your analytical toolkit and making this assessment. So, as an employer, I think it's really important to minimize as much interpersonal contact as possible. And this includes, I would say, multiple hands or bodies around a single customer or order. Let's say that you're a smaller boutique bakery or restaurant, and you have stations where your employees are assigned and they are pretty much only at that station.  So, let's say, for example, someone's in salad prep, someone is at the register, a line cook, and then the chef.  Everyone is spaced out to allow for social distancing, everyone's sort of in their own areas, and each is designated responsibilities for that particular role. There isn't much overlap or potential cross-contamination.  With enough safety precautions in place, such as masking, frequent handwashing, social distancing, as well as vaccinations and testing these environments might be able to sustain this flexible vaccinate or Test policy pretty well. On the other hand, though, if you're a restaurant where your policy is for all hands on deck, and we know restaurants like that where all the employees are sort of floating back and forth and it's busy and they're going from the register to the food prep, They're handling takeout orders, they're actually handling food, and then they go back to the register or where there are multiple people in the same station and everyone's bumping into each other where multiple hands are potentially touching a single order. Then even with other safety precautions in place, it's going to be extremely difficult to ensure that gloves are constantly being changed after every transaction or that they're constantly handwashing as they flow from station to station, even though outside of a Covid-19 environment under the Department of Health they still need to do this. But in this kind of restaurant environment, I would definitely require or I would definitely recommend a Mandatory Vaccination policy to minimize any kind of essential infection to vulnerable customers. Like I mentioned before, you don't know which customer could potentially have a vulnerable or immunocompromised health issue. And so I would say, just to err on the side of caution. We might want to go with the Mandatory Vaccination policy for this kind of restaurant.

Part 2: How to Operationalize my Policy?

Okay, Linda. So, at this point, the employer knows which policy they want to enforce. Can you share best practices on how the employer should communicate their policy? Who should be doing the communication and accordingly, who employees should follow up with?

Communication

Steve, I think, in general, an essential communication piece whenever you're conveying a new policy is to actually have it fleshed out and documented on pen. So, either part of the employee handbook where you can add it in there, during labor negotiations, for example, is usually added to the collective bargaining agreements, addendum, or MOU.  You can even write an office memo or send it out as part of an email. But I think the first takeaway is that you actually have it spelled out on paper. “The next step that I would recommend is consistency, which should maybe be the most important step.  Messaging should be consistent because it is reflecting a consistent policy.  So, for example, you can't have one policy; you can't say we're going to do the Flex vaccinate or Test policy for some employees and then we're going to do a Mandatory Vaccination policy for other employees. It has to be consistent across the board for all the employees and so processes for the exemption and the forms.  They also have to be uniform and administered consistently as well.” I also think an important aspect of rolling out the policy is allowing the opportunity for employees to ask questions. You asked who is sort of like the owners of the communication piece. And so this really depends on the size and nature of your organization.  Maybe a smaller business in a more intimate setting, an owner might actually be able to talk to us or her employees and give that communication piece in a broader or a bigger business setting.  It might be the supervisor team manager that would relay this communication piece. And so it really just depends on the nature and size of your organization. In terms of rolling out the policy, I think after it is rolled out, after it's on paper and it's explained, I think an important aspect is allowing employees the opportunity to ask questions and to provide them ample time not only to ask questions but maybe set up one on one’s with them. Again, a small business might have the owner set up, whereas a bigger business might have the supervising manager.  Walk them through their questions and concerns and reaffirm them throughout the whole process because I think there's a lot of potential anxiety going around in the workplace around the COVID-19 issues. And so I think it's important to reaffirm how important each employee, each person is, to your team, to each other, to your company culture, to your business, and so forth.  I think it should also be a goal to keep your employees happy and focused and productive in their jobs. And then I think it's also important Steve, because you may mention the fact that we have a ProService Hawaii kind of like a URL that is a tool kit of some sort.  I think you should definitely take advantage of that. I believe it's called vaccines and the workplace toolkit. There is a resource center and you can find the URL below. You can find templates there that you can use, and you can steal it from us, to confidentially track your employee’s vaccination status. You can use a template from many of our examples of the forms that we have for the medical and religious exemption. You can even find sample policy templates or sample policies there. So, I think it's an invaluable resource that should definitely be taken advantage of..

Confidentiality

There are so many important details that you pointed out there. I guess in listening to you Linda, going back to the who at your company communicates it, and then also what employees then respond back to in confidence for those private conversations and to provide their documentation. I guess here kind of the unspoken assumption is that whoever is the owner or head of HR will train such that they know again, consistently what the policy is, consistently how to have these conversations, and they know to keep all the conversations confidential. If your team has an HR person, an office manager, someone who has access to the personnel documents and has experience dealing with reasonable accommodations in general for employees who have disabilities or medical issues, then they would be familiar with that process. Whoever is currently doing that process should continue to have ownership of that process in filling out the extension or working with employees to fill out the exemption forms and going through the interactive reasonable accommodation process.

Vaccination Status

So, Linda, at ProService Hawaii, we're getting many questions from employers about what they should and should not say when they are directly asked, are all your employees vaccinated? They might be asked by a customer, they might be asked by a vendor. They might be asked by people on their staff, but when they're asked what are best practices of what and how they should respond. Well, I know this is a hot topic and it could be a little bit of a tricky topic to navigate so I think an important takeaway, or something that might help clarify things, is if you think of it from the perspective of an employer or business owner who has an obligation. They have to safeguard the confidentiality of the vaccination status of their employees. And it's not just vaccination status. Whenever an employer has employees in general that have a medical condition disability and they're aware of it, they have to safeguard that information. That means even if that individual speaks up and says, “hey, I have this medical condition,” on an individual level someone can speak all they want about that, but the employer can never divulge any information, including vaccination status.  If you take a step back and think about this from sort of a bigger picture and if somebody were to ask you as an employer “Steve, can you confirm and reassure me that 100% of your employees are vaccinated?” it then gets tricky, right? Because they're not asking about an individual employee.  You know that you have to protect your employee’s individual status. But that question seems like it's an aggregate kind of question.  Can you then, Steve, say, “oh, yeah. I can confirm that 100% of my employees are vaccinated?”  I know this is more of a rhetorical question. I'm going to give you the answer. You actually should not be giving any kind of definitive answers, blanket statements, or reassuring anyone, even to the aggregate level, about your employee base. Again, we don't want you to discuss any details about your employee base in terms of their medical or vaccination status. What you can do in these instances is simply reiterate and try to ensure them of the safeguard that you have in place for safety and health procedures. So, you can simply say we have a Mandatory Vaccination policy at our workplace. In addition to that, we have a masking policy, social distancing policy, we have PPE in place etc.. You can kind of go a little bit into the weeds and try to reassure them that way.  If they continue to pick at it and ask you for verification, you can simply tell them “If you feel comfortable, you are welcome to ask the waiter whether he/she has been vaccinated.”  They are free to ask because on the individual level, it is not a violation to ask someone.   On an individual level, when someone says, “Steve, are you vaccinated?”  You can reply however you want. But this isn't kind of a confidentiality breach in that sense. The employer and the individual both have different kinds of obligations and responses they can give. So, always pushback, reiterating the policy, trying to reassure them, and then also inviting them that if they're still uncomfortable with your response, you know, feel free to ask.  And if he or she is not vaccinated, we can try to switch up a waiter or someone else and then you can ask you for her. I know that sometimes that's not a sort of maybe the most practical way about it, but that is our best practice in place on this issue. Boy, Linda. So, this is where the season really gets tricky, doesn't it? So, I'm going to say this back in my role as I'm playing the employer now, to make sure that I understood this. So, one of my customers asked me or maybe let's say they demand of me “Steve, you have cleaned our offices or a worksite for many years and we love your service.  to protect my work site, I need to make sure that all your employees are vaccinated, and I don't want you sending anybody unvaccinated to my job site.” So, my client is telling me that number one, I cannot say anything about what percentage of my people are vaccinated or not. I can say I have a strict vaccinate or Test policy. My company takes this very seriously, and I assure you that we are using all the right safety protocols. I care about all of our safety too: your safety, my people‘s safety, and our community's safety. I can say all that, but I cannot say 85% are vaccinated?. And then to your other point, I can then also suggest to them if they’d like, that they are welcome to ask any of my employees directly, not going through me but going directly to my employees, for evidence of their vaccine card or something like that? You can suggest that.  If you get the sense that your customer or client is still unsatisfied, you can tell they're still uncomfortable with that response, you reiterated the policy, and they're still kind of pushing back, then you could offer that as a kind of a second offering to them. And I guess what's interesting here, then, is the action I can take is that I can make sure the service person I send to clean their worksite is in fact vaccinated.  Guess what? You cannot tell them that you're going to send a vaccinated person. So, I cannot tell anybody,  I just know in my mind that is the decision I'm making, but I am not telling anybody that.   Because you don't want to send someone there who isn't, and then they have to go through this whole ordeal of showing the card and the client sends them back. You might as well just send someone vaccinated, but you cannot commit or make any promise to the client about the nature of your employee’s vaccination status, you see. But you're getting it. Steve. I think it's more clear, right? Yes. Very important to distinguish what I say versus what I do. And I'm doing everything correctly. But I have to be very careful about what I actually say and what I do not say. I think essentially, a good piece of advice is just to always remember that you don't want to speak about anyone's status. Any definitive response is something to stay away from. If someone asks you to please make a promise or to reaffirm or to give it a quantifier a certain number. Just as a good rule of thumb, try to reiterate, in general, your APIs policy. In general, we have the safety things and to the other points that you mentioned, those are good strategies for handling these situations. Okay. I want to make sure that the service person is vaccinated, etcetera.

Vaccine Incentives

Linda, We've consistently said and actually encouraged employers to please incentivize your people to vaccinate because it's good for their safety, It's good for their team’s safety, and it's good for the community. Can you share best practices and ideas, creative ideas on how employers might come up with their incentives, and also that they come up with incentives in a way that is in no way deemed coercive? That's an important point, right? Because an employer can incentivize and reward employees for getting vaccinated, as long as it's not a coercive incentive. Although I think coercive incentives are a little bit rare when you think about coercion, it's almost like a retaliation in some way, it’s some kind of where an agent can expect that the failure to act in a specific way will result in some kind of physical force being used against them by others. In most cases, I don't think you have to worry about that. I can give some examples. There are smaller incentives that employers are giving. For example, he will give you a gift certificate, a $25- $50 gift certificate, or in the next paycheck, we'll give you a little bit extra. You can do little things like that. There's also, I would say, a debate right now on whether people react, how they react to smaller incentives and rewards or bigger ones, an extra week off pay leave or something. I mean, this is a huge incentive, right? But you can be creative and you can do whatever you're comfortable with and whatever is feasible for your business operation. Can you give us some examples and creative ideas on the types of incentives that Hawaii employers might give? I mean, apart from the bigger things that I just went through, you can also do a number of smaller rewards as well. So ,I already mentioned gift cards. You can give, like free or discounts off of company services or partners with your company, their services. You can give additional company swag. If your company has a gift shop and something like that, you can give $50, $100, $200, like a small little bonus to people. So really, the sky's the limit - you can get creative on this.

Conclusion 

This brings us to the end of our on-demand Webinar: Vaccines and the Workplace. A reminder, ProService Hawaii has created a robust resource center for employers, everything you need regarding vaccinations, where we'll be continually updating the latest state and federal government orders.  We will continue updating and adding tools and templates that you can use to help you choose and implement your policy, whether it's writing your policy, communicating your policy, confidentially tracking and enforcing your policy, and even down to examples of the type of proof that you'll need for the compliance to certain government orders.  Examples of acceptable forms of proof in the state of Hawaii of somebody's vaccine status is all there at our resource center if you just click on the URL at the bottom of your screen. A reminder that some of the recent government orders, whether it be Oahu safe access, Maui restaurant requirements, or the coming federal vaccine orders for employers over 100 people, these are all examples of a Flex Vaccinate or Test policy.  Of course, ProService Hawaii will continue to update who is covered under which government order policy, or if you still have the flexibility to choose your own because you are not covered under one of them. Thank you for joining us for our on-demand Webinar and again, please consult ProService Hawaii’s Ultimate Guide to Vaccines in the Workplace at the URL below. Mahalo and Aloha.  Mahalo, thank you.