Features | February 23, 2021
Affinity HR Q&A Roundup
Sensitive Situations: Advice From HR Experts
Can employers mandate the COVID-19 vaccine? How should terminations be handled in a remote work environment? How do you manage employees’ social media behaviors? These are important questions employers have that require sensitive attention. Affinity HR, PSDA’s affiliated human resources partner, weighs in.
Question: Can I, as an employer, require my employees to get a vaccine for COVID?
Answer: Yes, the EEOC recently advised that employers are within their rights to require a COVID vaccine as a condition of employment. Employers must, however, provide reasonable accommodation for those who cannot take the vaccine due either to a medical condition or to a sincerely held religious belief, as provided under the Americans with Disabilities Act and Title VII of the Civil Rights Act.
At this point, our recommendation to employers is to start with a positive, voluntary program before wading into the challenges posed by mandating the vaccine. Of course, we encourage employers to seek our advice or the advice of legal counsel before moving forward with a vaccination policy.
Question: Unfortunately, we have to let one of our associates go for performance reasons. We are all working remotely still. What is the best way to do a termination virtually?
Answer: As with all terminations, be sure to have all your ducks in a row before going into the termination conversation. Key things to work out in advance include:
- Reason for the termination
- Termination Letter
- Date of last paycheck and continuation of benefits
- Expectations of returning equipment, intellectual property, etc.
- Opportunity for references etc.
All of these should be well thought-out prior to your meeting. If possible, conduct your termination meeting via video so that you can respond effectively to the emotional needs of your employee. Terminations via email or text should be avoided at all costs. It's always best to have an additional management-level employee or HR professional on the call to provide support, answer questions and serve as a witness to the conversation.
Let employees know when to expect notifications, final paychecks, and any outstanding exchange of information, personal possessions, objects that may remain in the office, equipment or other materials. You may also want to let the employee know if they are eligible for rehire or whether you will be willing to provide a referral.
As always, whether in person or virtually, treating an employee with respect and care during a termination is always the best approach. It allows the employee to retain their dignity during a traumatic event and reduces the chances that they will sue you for wrongful termination. Plus, it's just the right thing to do.
Question: An employee posted concerning comments on their personal social media page. I am worried this may impact our business. Can I take any action against the employee?
Answer: Maybe. While an employee’s social media postings are personal, they are not private since they are shared with a broad audience. There are some posts which you can take action on while others are protected.
You can usually take disciplinary action if the post violates one of your policies, such as confidentiality or non-discrimination/harassment/sexual harassment, or shows the employee participating in illegal activity, such as looting or violence. Disciplinary action can include termination if serious enough.
However, if the employee’s post expresses their frustration or concern over working conditions (such as wages, management or safety), it could probably be considered “protected concreted activity” under the National Labor Relations Act, and therefore no action should be taken except trying to rectify the concern. Some states also protect legal off-duty behavior, so a post of an employee legally smoking marijuana, for example, is also protected.
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