COVID-19 Vaccine Considerations for Agencies, Families, and Nannies
– by Guy Maddalone
As more people become eligible for the COVID-19 vaccine, we have been receiving questions from our families and agency partners about potential legal issues. I consulted with our HR team here at GTM to provide some answers to help you, your families, and your nannies understand employment regulations and consider options when it comes to the vaccine.
Can an agency promote that their nannies have been vaccinated?
Employee health information, including vaccine status information, should generally be kept private and not shared with the public. Employers generally have a requirement to safeguard employee health information they have received under several laws, including the Americans with Disabilities Act. What you can do is promote the steps your agency is taking to ensure that safety protocols are in place and being followed.
Aside from the privacy of individual health information, there are reasons why some nannies would not be able to get the vaccine as it relates to their protected class. This is information that should not be discussed with families, including religion, health conditions, or pregnancy. Indicating who among your nannies has been vaccinated could result in peers or families pressuring those nannies who have not done so. This could lead to claims of discrimination and harassment, which would be a very risky situation for agencies who may be unintentionally supporting this potentially discriminatory peer pressure.
You can make your families aware of the efforts you are taking, including encouraging the vaccine, and enacting cleaning protocols, mask requirements, and social distancing.
Can agencies prioritize placing nannies who are vaccinated before or instead of those who aren’t?
It could be considered discriminatory to assign work to those nannies who are vaccinated versus those who are not, solely because they are vaccinated. This is because vaccine status may interplay closely with age, disability status, religion, or other protected classes. The nannies who have opted out of the vaccine could be doing so for protected class reasons, and as a result, showing preferential treatment to those who are vaccinated may be viewed as discriminatory. It is best to make job assignments based on the nannies’ capabilities as opposed to whether they are vaccinated or not. As an aside, whether nannies are vaccinated or not, you’ll want to ensure that you are following all relevant state and local mandates around masking, social distancing, and other safe workplace practices.
Can a family require their nanny be vaccinated?
Families can make a COVID-19 vaccination, or proof that they have received one, a condition of employment, to continue working, or returning to work. Keep in mind that any vaccination-related questions must be job-related and any medical information obtained during a vaccination requirement must be kept confidential. Families should caution nannies to provide proof of vaccination that does not include their personal medical information.
In New York, all employers must now provide up to four hours of paid leave per vaccine injection for employees to get the COVID-19 vaccine. Employees must be paid their regular rate of pay during the leave, and the leave may not be counted against any other leave to which the employee is entitled, including paid sick leave required by state law. Other states may begin enacting similar laws.
One thing to consider is that making a COVID-19 vaccination mandatory may limit the number of nannies interested in working for a family. It can be difficult enough finding the right nanny without placing additional conditions on the job.
Can a family fire their nanny if they refuse to get a COVID-19 vaccination?
A family can terminate their nanny’s employment if they refuse to get vaccinated and the family has made COVID-19 vaccination mandatory as a condition of employment. Moral, ethical, or personal objections are insufficient reasons to refuse an employer-mandated vaccine.
If a nanny cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, families should discuss the concerns to determine if they must make a reasonable accommodation or if it poses an undue hardship.
For a nanny, there may be no “reasonable accommodation” possible, and it could cause your families “undue hardship” as they would be without child care. A nanny cannot telework or be reassigned to a different job or location as a traditional employer may be able to do to accommodate a worker. This does not mean a family can automatically terminate their nanny. They may have other rights under federal, state, or local authorities.
As things continue to improve, I hope you, your families, and your nannies stay safe and healthy.
As always, GTM Payroll Services is here as a resource for everything household tax, payroll, insurance, and benefits. Contact us with any questions or to request information.
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