COVID-19 vaccines have demonstrated effectiveness in preventing recipients from getting sick. Health experts and scientists are still investigating how vaccines will affect the spread of COVID-19. The world community is hopeful that they will also reduce or eliminate transmission and be effective across a span of variants. Time will tell.
As of this writing, the US has achieved 25% of the population vaccinated with at least one dose and 12% have completed the full vaccination regimen. There is still a long road to travel. The process of vaccination prompts employers to once again review their office and work environment policies to protect the wellbeing of employees and the business. Given the level of uncertainty, this exercise generates more questions than solid answers. Here is a summary of elements that should be addressed in the policymaking process:
1. What should a comprehensive COVID-19 workplace vaccination and safety policy include?
A workplace vaccination and safety policy should include, at a minimum:
a. A clearly stated position on vaccination being mandatory or voluntary and which groups or classes of employees are covered.
b. A policy for visitors, contractors, and other non-employees entering the office;
c. A policy stating the required documentation to verifying vaccination status;
d. Incentives available to support getting vaccinated and responding to any side effects of vaccination any reimbursement, time off, or incentives for vaccination;
e. Employee accommodation request process and availability;
f. Expectations for continuing PPE, workplace health and safety measures, and office access;
g. Continuing or amended protocols for COVID-19 exposure post-vaccination including timely communication, testing, self-isolation, quarantine period, and leave policy (paid or unpaid);
2. Should Vaccines be made mandatory or left voluntary?
Mandatory vaccination is an area of unsettled law. There is no specific law that says yes or no. In general, it is recommended that an employer support employee vaccination on a voluntary basis. Employers in most states may be able to mandate COVID-19 vaccinations but there should be careful consideration of compliance with the Americans with Disabilities Act, Title VII of the Civil Rights Act, OSHA rules, Workers Compensation coverage liability, and any number of State regulations. If there is union representation mandatory vaccination may require collaboration with the union.
3. Can an employer implement a hybrid approach to vaccination (e.g., requiring vaccination for new employees but voluntary vaccinations for existing employees; or one that mandates vaccination, but only for specific classes or groups of employees)?
Such an approach is permissible as long as the employer has a legitimate, nondiscriminatory basis for delegating which components of their workforce will be subject to each vaccination policy. The most important consideration is to treat all similar classes or groups of employees the same.
4. Can an employer ask an employee if they have received a vaccine?
The EEOC ruled that the vaccine is not a “medical examination” under the American with Disabilities Act (ADA). This means an employer can encourage employees to get a vaccine or ask if they have or will receive it without needing to take additional steps to show job-relatedness or consistency with business necessity. Health-related information, including if an employee was vaccinated or not, must be treated as confidential and kept in secure files, separate from regular employee files.
5. Can an employer deny office access, discipline, or fire an employee who refuses to get
An employer should give special consideration to the level of necessity of vaccination for its specific business as that may dictate how a policy is drafted. All vaccination policies must contain exceptions for individuals protected under the ADA and Title VII. This includes accommodations for disabilities and religious beliefs. While employers must take reasonable steps to ensure a safe workplace under the Occupational Safety and Health Administration (OSHA), there is no clearly articulated rule for employers to follow regarding vaccines. An employer is free to make special accommodations for employees but should be careful that they a offered consistently without bias against any group of employees. Employer-specific decisions are necessary, and it is important to follow current guidance from the CDC.
6. Is an employer required to pay for an employee’s vaccination?
Under the Fair Labor Standards Act, an employer must cover any required work-related expenses (i.e. mandated vaccination) for an employee if the cost of the expense would drop the employee below minimum wage. State laws may also require payment.
In addition, an employer is obligated to pay an employee for time spent seeking medical attention that is required by the employer and occurs during work hours.
7. Can an employer offer incentive to an employee for getting vaccinated?
Employers can offer incentives for getting the vaccine. However, any incentives should be “de minimus”. The incentive should strike a balance between an incentive that is enticing enough to vaccination, yet not so heavy-handed as to be viewed as coercive. The American Rescue Plan expands employer tax credits for paid leave taken for or due to vaccination. A participating employer can provide paid leave to support vaccination.
The pandemic, COVID-19 vaccinations, and the employer is an evolving legal environment with overlapping jurisdictions issuing contradictory guidance or publishing outdated information. Each employer needs to tailor policies to the specific needs of the business while complying with the regulations of federal, state, and local laws. Seek advice and input from legal advisors before implementing COVID-19 vaccination and workplace safety policies.