INW AGC’s Proposed Best Practices for Addressing the Vaccine Mandate in Proclamation 21-14, et seq. within your Organization[1]

Step 1 – Establish a Written Policy.

This will be critical in communicating with your employees and in fulfilling your obligations to the owner. As part of the mandate, agencies and other public owners are given the option to require contractors to assume full responsibility for vaccine verification and accommodation requirements. It is safe to assume that all owners will pass on this responsibility, and it is advised that you in turn require the same process from your subcontractors.

It is important to communicate directly to your employees that you are not requiring that they get a vaccine, the reasons behind the Governor’s policy, and what your process will be to implement the policy. A sample policy is available here but will need to be tailored to your specific company needs. Some things to keep in mind when establishing a policy:

 

1. Gathering the information. Employers are allowed to ask employees about their vaccination status if they have a legitimate business reason to ask. Additionally, the ADA has ruled that proof is permissible because it is not likely to prompt the employee to provide disability-related information. However, follow-up questions about why an employee did not receive a vaccine may elicit such information and should not be asked. If employees wish to seek an exemption from the mandate, they can provide additional documentation (see exemption information below).

Sample Survey: This survey can be converted to a Google Form or Microsoft form to gather information electronically. More information will need to be provided but this is a good first step.

 

2. Storing the information: The state does allow for visual verification of vaccination status that does not require keeping and storing information. The following forms of proof are allowable by the state (samples of each available here):
   • CDC COVID-19 Vaccination Record Card or photo of the card;
   • Documentation of vaccination from a health care provider or electronic health record;
   • State immunization information system record; or
   • For an individual who was vaccinated outside of the United States, a reasonable equivalent of any of the above.

Your company will need to determine which of the following methods to choose:

• Visual Verification: If you simply require an individual to show proof of vaccination, you will need to determine who within your company will be tasked with keeping this information, such as your designated HR person, or an officer of the company. It is advised you keep a list of all employees, their vaccination status, the date vaccination was verified and include with it an attestation from the responsible individual that they have personally verified the information.
• Copies of Proof of Vaccination: If you choose to keep copies of each employee’s proof of vaccination, the ADA requires an employer to maintain the confidentiality of employee medical information.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and securely stored separately from the employees’ personnel files under the ADA.
• If you are provided a vaccination record that is an obvious fake, or which you suspect is a forgery, you may ask the employee to provide his or her immunization records either in print or electronic form from their medical provider. 

 

3. Exemptions: Employees are not required to get vaccinated against COVID-19 under this Order if they are unable to do so because of a disability or if the requirement to do so conflicts with their sincerely held religious beliefs, practice, or observance. Employers are prohibited from granting exemptions that they know are based on false, misleading, or dishonest grounds or information; that they know are based on the personal preference of the individual and not on an inability to get vaccinated because of a disability or a conflict with a sincerely held religious belief, practice, or observance; or without conducting an individualized assessment and determination of each individual’s need and justification for an accommodation; i.e., “rubberstamping” accommodation requests.

Anyone who is eligible for a religious or disability-related/medical exemption is entitled to a reasonable accommodation assessment. The reasonable accommodation assessment will take into account the individual’s position, the business needs of the employer, and the business needs of the owner. The State has set forward standards to determine if employees qualify for one of these exemptions as follows:

• Medical Exemptions: If an employee wishes to apply for a medical exemption, the employee must provide documentation from the employee’s medical provider that confirms the employee is medically unable to receive any of the available COVID19 vaccines.  You as an employer cannot grant a disability-related accommodation.  Employers must meet with individuals to discuss the request and possible accommodation. As with the proof of vaccination, this information must be kept confidential and stored separately from the employee’s personnel files.
  • Sample Form provided by the State (Microsoft Word version here)

 

• Religious Exemptions: If an employee wishes to apply for a religious exemption, they must fill out a religious exemption request form. Below are sample forms, additional information and guidance provided by the Governor’s office:
  • Sample Generic Form
  • Sample Form Provided by the State  (Microsoft Word version here)
  • State of Washington Religious Accommodation Guidance for HR professionals
  • EEOC Guidance on religious accommodations

 

4. Accommodations: The proclamation requires an individual who receives an accommodation to take COVID-19 safety measures that are consistent with the recommendations of the state Department of Health for the setting in which the individual works. This includes the use of additional PPE and possible social distancing requirements. That being said, the state has indicated that there may be additional guidance on this issue and are unsure what accommodations may be allowed.

 

5. Time Off to Get Vaccinated: You will also need to determine your policy for how you will handle time off to get vaccinated or recover from adverse effects. While there is language provided in the policy, please review carefully and determine what your company is willing to provide. Please note that these requirements may be governed by a union agreement or LOU.

 

6. Unvaccinated Employees: What will your policy be for those individuals that are not vaccinated? Will you try to move them to a project not covered by the mandate or will they be terminated because they no longer meet the requirements of the job? It is important to note that the ESD has determined that separation from employment due to refusal to get the vaccine does not qualify the worker for unemployment.

 

7. New Hires: The mandate states that companies must also verify the vaccination status of all new hires before they can begin work on a project covered by the proclamation. You will need to ensure that this is made clear as a condition of employment for all new hires.

 

Step 2 – Communication.

1. Employees: It will be important to communicate your policy to employees as soon as possible to begin gathering information and processing requests. We have also provided links to information about the COVID vaccine, Toolbox Talks and other educational materials. For those that do wish to get vaccinated before the deadline, the timeline for each vaccine is below:

Vaccine	Series dose requirement	First dose no later than	Second dose	Fully vaccinated after two weeks
Moderna	2 doses, 28 days apart	Sept. 6	Oct. 4	Oct. 18
Pfizer	2 doses, 21 days apart	Sept. 13	Oct. 4	Oct. 18
Janssen/J&J	Single dose	Oct. 4	Not applicable	Oct. 18

 

2. Sub-contractors: Notice should be sent to all subcontractors immediately if they are on a project subject to this mandate.  The notice must state that they will be required to provide you a signed declaration for each project stating the employees are vaccinated or that it has approved either religious or medical exemptions. It is also important to establish a policy to receive regular updates from the sub – this may be dictated by the owner as well. The state recommended declaration form contractors will be required to provide is available here.

 

Step 3 – Compliance.

1. The state has provided this sample declaration form to be used by state agencies, but each owner may provide their own form. Once again, it is recommended that you acquire a similar form from each subcontractor before signing a declaration for the entire project.
2. Additionally, you should be prepared for owners to require a declaration on a recurring basis, possible weekly, so you must establish a process for the continual verification of status for you and your subs.
3. Labor & Industries: We are still waiting from guidance from L&I on what enforcement of this mandate will look like, but from what we have heard so far they are primarily concerned with the process you will be using – how you verified vaccination status, your process for granting exemptions, and documentation practices, etc.

 

Step 4 – Projects.

After all of this, you are still under contractual obligation to complete projects in a timely manner. We know this mandate will have an impact on your workforce and may affect your ability to perform. We are working on a white paper to help you communicate with owners on the potential cost impacts on your projects that will be available soon. It will be prudent to review and follow the claim procedures in your contract.