Legal, Legislative, & Regulatory
COVID VACCINE CONSIDERATIONS FOR EMPLOYERS
Of the many challenges presented by the COVID pandemic, on the forefront of many employers’ minds, is how to deal with vaccines—whether to mandate them, encourage them, or incentivize workers to receive them, plus a variety of other issues. This article addresses various considerations for employers relevant to these concerns based upon the rapidly changing guidance.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that unmistakably signals that employers can require workers to get the COVID vaccine, even under the Emergency Use Authorization (EUA). The EEOC plainly indicated that, subject to certain limitations, employers may require immunization of their workers without violating the Americans with Disabilities Act (ADA), Title VII, or other federal anti-discrimination laws. According to the guidance, this is true even though the COVID vaccine is only authorized under an EUA rather than the full and comprehensive U.S. Food and Drug Administration (FDA) vaccine licensure process.
The EEOC’s guidance also states that employers can require employees to provide proof that they have been vaccinated.Pursuant to the ADA and Title VII, the EEOC limits the type of information employers may obtain from employees and the circumstances under which they may request it. Under normal circumstances, employers cannot conduct medical examinations of or pose disability-related questions to employees without establishing that such actions are job-related and a business necessity. The severity of the pandemic, however, has led the EEOC to relax this general rule in some respects, such as permitting employers to screen employees for COVID symptoms before entering the workplace. Employers’ discretion in this area is likely to fade as the severity of the pandemic subsides.
Notably, when requiring vaccinations in the workplace, the employer must be prepared to establish that the requirement is job-related and consistent with business necessity in order to enforce the mandate. Specifically, if an employee cannot be vaccinated because of a disability, the employer must individually evaluate whether it can provide a reasonable accommodation that would enable the employee to perform the essential functions of his or her job without posing a direct threat to safety and health in the workplace. Employers must engage in a similar interactive process if an employee cannot receive the vaccination due to a sincerely held religious belief or practice.
As of the date this article was submitted for publication, the Occupational Safety and Health Administration (OSHA) has not yet published regulations directly addressing COVID or vaccines. However, on January 29, 2021, OSHA issued detailed guidance for employers to help mitigate and prevent the spread of COVID in the workplace. Among other considerations, the guidance recommends designating a workplace coordinator who is responsible for all COVID issues, including vaccinations, and making the COVID vaccine available at no cost to employees.
Critically, OSHA’s current guidance also recommends that employers should not distinguish between vaccinated and non-vaccinated employees. Employers should continue to implement social distancing and facemask requirements even after workers are vaccinated because, according to the Centers for Disease Control and Prevention (CDC), medical experts need to understand more about the protection COVID vaccines provide before changing any recommendations about masks and social distancing.
As referenced above, the EEOC has clearly indicated that employers may require employees to get vaccinated for COVID, with some limitations. There are several potential benefits of a mandatory vaccination. The operational and organizational toll of COVID in the workplace is significant. In addition, mandatory vaccination polices may be particularly appealing in states where employers bear the burden of COVID paid sick leave and employee testing. There is an underlying belief that implementing a mandatory vaccination policy will aid employers in preventing the spread of COVID in the workplace, thus reducing the need for sick leave and testing for employees. This belief, however, is speculative, as the CDC has stated many times that additional information is needed to determine the extent to which the COVID vaccine will be effective in preventing transmission.
Nevertheless, although employers can require vaccination, it does not necessarily follow that they should. Many factors, including the nature of the employer’s business and the particulars of each employee’s job, must be considered, along with the practical consideration of how employees are likely to respond to a vaccine mandate. Thus far, surveys indicate that the vast majority of employers will be encouraging but not requiring COVID vaccinations. Whatever their decision, employers should develop and clearly articulate the rationale underlying their approach to maintaining a safe workplace under the current pandemic conditions.
It appears that a far greater number of employers will seek to encourage their employees to get vaccinated instead of mandating it, especially given the recent guidance from the CDC that allows workers exposed to COVID cases to escape costly quarantines if they have been fully vaccinated. Many employers are intrigued by the concept of incentivizing their workers to get inoculated as a way to increase participation. While it might seem a simple task to offer a reward in exchange for a certain behavior, this area is complicated by legal risk due to concerns of violating wellness program rules (if you offer such a great reward that you are seen as coercing your workers to get vaccinated against their will), reasonable accommodation issues under both disability and religious discrimination law, privacy issues, tax implications, benefits concerns, and potential wage and hour liability. Unfortunately, as of the date of publication, the EEOC has not provided clear guidance to employers about how to administer a compliant incentive program despite requests from business groups. For these reasons, you should consult with legal counsel before implementing any such incentive program.
However, if you follow in the footsteps of employers that have already announced incentive programs, you will most likely consider offering paid time off (PTO) or a cash/gift of modest value to those workers who choose to get inoculated. Some employers are choosing to offer a bank of PTO hours to workers who prove vaccination (in some cases four hours, eight hours, or even multiple days off), while others are just providing PTO to cover the amount of time it takes to get the shot(s). As for those offering cash or gifts, many employers are offering nominal company-branded swag, while others are offering incentives equal to two or four hours’ worth of pay or a certain set amount (say $100). Other employers are getting creative by offering a small incentive plus a raffle for a luxury item (such as an Apple watch) for one lucky winner. Other employers believe that paying for the vaccination is reward enough, while others plan to set up a vaccination station on site and believe that is sufficient inducement. Regardless of the route you choose, you should coordinate with your human resources personnel and legal counsel before proceeding.
OTHER LEGAL CONSIDERATIONS
There are many other vaccine-related issues for employers to consider. These include, but are not limited to:
- Whether and how to ask pre-screening questions without violating the ADA;
- Privacy issues related to the possession of medical information that could be provided during the proof-of-vaccination process;
- Considerations under the Fair Labor Standards Act (FLSA) related to the reimbursement of employee expenses incurred when obtaining the vaccine on the employer’s behalf;
- Challenges in a unionized setting because, under the National Labor Relations Act (NLRA), unionized employers must bargain collectively with the authorized collective-bargaining representative over all matters affecting “wages, hours, and other terms and conditions of employment;”
- Employer and employee vaccine registration concerns using federal and state registration programs;
- Implementation of disciplinary measures for employees who refuse mandatory vaccination; and
- Vaccine prioritization requests.
As the pandemic continues to evolve, employers must remain flexible and nimble. New guidance from the EEOC or OSHA, or Congressional action, could change the analysis of vaccination issues quickly. Employers must also continue to monitor relevant state and local legislative activity. Regardless of how employers decide to manage the vaccination process, they must continue to communicate their decisions effectively in the workplace, training supervisors to fulfill their vital role as the eyes and ears of the company.
This article is designed to give general and timely information about the subjects covered. It is not intended as legal advice or assistance with individual problems. Readers should consult competent counsel of their own choosing about how the matters relate to their own affairs.
PHILLIP C. BAUKNIGHT, ESQ.
Murray Hill, New Jersey
A. KEVIN TROUTMAN, ESQ.
APRIL PERKINS. ESQ.
ABBY HARRINGTON, ESQ.
San Francisco, California
OSHA CORONAVIRUS RESOURCES
The Occupational Safety and Health Administration (OSHA) has a Coronavirus resource page at www.osha.gov/coronavirus. It includes OSHA requirements, guidance, and highlights and tools sections.