May 6, 2021
Employer Considerations for Implementing COVID-19 Vaccination Policies
By Samuel N. Klewans, Esq. and Michael W. Skerritt, Esq.
Signaling at long last a light on the horizon, the rollout of COVID-19 vaccines has no doubt begun to ease fears for many employers trying to run businesses in a volatile and unprecedented environment. At the same time, the availability of new vaccines has no doubt raised questions among those same employers about how best to implement vaccination policies in the workplace with respect to their employees. This article discusses some considerations employers should heed in developing such policies. Note that the information provided here is not exhaustive and it is not intended, nor should it be construed, as legal advice. These considerations involve ever-shifting facts and the scientific and legal landscape is changing in real time.
Cultural and Operational Factors
First and foremost, there is no cure-all approach for employers in developing COVID-19 vaccination policies. Context matters. Cultural and operational factors specific to the employer and its industry must be considered, along with applicable federal, state, and local laws. A manufacturing plant, for instance, will have different considerations than an IT firm where all workers are remote. The provision of medical services inherently involves employees working at a physical location with one another and with patients, and thus healthcare employers should be particularly mindful of the considerations involved in developing their vaccination policies.
The most basic question seems to be whether an employer may require employees to obtain a vaccine. Generally, the answer is yes. As noted above, the question of whether doing so is advisable will depend on many factors specific to each employer and should consider the applicability of various equal employment opportunity (EEO) and other federal, state, and local laws and guidelines. The Equal Employment Opportunity Commission (EEOC) has also provided helpful guidance in recent months on this topic. Under the Americans with Disabilities Act (ADA), an employer may exclude from the workplace employees who pose a “direct threat” to the health or safety of individuals in the workplace. As of now, with current COVID-19 metrics, the EEOC considers a non-vaccinated employee to pose a “direct threat” to others. This is especially true in healthcare practices, where employees work in close quarters with one another and with patients. Again, context matters.
If an employer seeks to implement a mandated vaccination policy, the next logical consideration would be what happens if an employee refuses to get the vaccine or cannot do so for legally protected reasons under EEO or other laws. Examples of such legally protected reasons include disability (under the ADA and similar state EEO laws), religion (under Title VII of the Civil Rights Act and similar state EEO laws), pregnancy (under certain state laws), and political belief (also under certain state laws).
Identify Reasonable Accommodations
Assuming under the current EEOC guidelines that the non-vaccinated employee who refuses or cannot obtain the vaccination as part of a protected class poses a direct threat at the workplace, the employer must first determine whether it can provide reasonable accommodations that would eliminate or reduce the threat posed by such non-vaccinated employee in a way that does not cause the employer undue hardship (i.e., significant burden or expense to the employer in providing the accommodation). Accommodations are fact-specific and will vary not only for each workplace but for each individual employee. Employers should work together with employees to identify which accommodations may work best for both sides in a way that does not constitute an undue hardship to the employer. As a result of this dialogue, it may be necessary for the employee to provide further information to support the employee’s accommodation request. In addition to undue hardship, employers should keep in mind that generally they also will not be required to provide an accommodation that would allow the employee to avoid performing essential job or pose a direct threat to the health or safety of others, or grant the specific accommodation requested by the employee where there are other more accommodation options available that are more desirable to the employer.
The undue hardship consideration in the healthcare practice context might include the level of interaction and expected contact between the employee and other employees or patients, and the prevalence of COVID-19 vaccinations among employees across the entire workplace.
Employers may rely on guidance provided by the Centers for Disease Control (CDC) in determining the availability of accommodations that would not pose an undue hardship. They should also consult applicable standards and guidance provided by the Occupational Safety and Health Administration (OSHA).
Generally, accommodations in this context may look very similar to those afforded an employee who must be excluded from the workplace due to a current COVID-19 diagnosis or symptoms. The employee may be able to work remotely, depending on his or her duties, or otherwise may be eligible to take leave under the Families First Coronavirus Response Act, under the Family and Medical Leave Act, or under the employer’s policies. It is worth noting here that at present, unless specifically tied to a disability, generalized fear of vaccination is not likely to qualify as a legally protected reason for refusing the vaccine that would require the employer to offer reasonable accommodations. The EEOC holds under its current guidance that generalized fear of contracting COVID-19 does not require accommodation, so it may reasonably be argued that neither does generalized fear of the vaccine.
Under current EEOC guidance, where an employer is unable because of undue hardship to provide a reasonable accommodation to the non-vaccinated employee that would eliminate or reduce the threat posed to others by the employee, the employer may exclude the employee from physically entering the workplace until he or she obtains the vaccination. This does not mean that the employer having such right may terminate the employee for refusing vaccination. Even where the employee’s objection or inability to vaccinate is protected under EEO or other laws, a mandated vaccination policy must allow for the employee to refuse to be vaccinated. Such policy may, however, include consequences based on such refusal, such as the employee not being allowed to physically enter the workplace until proof of vaccination is provided as discussed above. Employers will need to determine on a case-by-case basis if any other employee rights apply under EEO or other federal, state, or local laws or regulations.
Mandatory Vaccination Policy Drawbacks
As Jeff Goldblum taught us, whether employers can enact policies mandating employee vaccinations is of course an entirely different question than whether they should. A mandatory policy can have drawbacks. As discussed above, it can create administrative headaches for employers with respect to employees who cannot or refuse to obtain vaccinations. It may also make employees generally feel uncomfortable, which can directly affect workplace morale, production, and ultimately, employee turnover. The vaccination rollout is still relatively young and there remain questions about its effectiveness and possible long-term health effects that will only be answered with time. If employers force employees to vaccinate, it is unclear at this point to what extent employers may incur any liability should any vaccinated employees become ill or suffer long-term health consequences. Such liability may be covered under the employer’s workers’ compensation policy if deemed to have arisen out of and within the scope of employment, but the extent of such coverage will vary by state and by plan. Therefore, employers should consult with their workers’ compensation carriers or administrators when developing vaccination policies. Finally, employers should consider that vaccines are still not widely available to the public. Thus, imposing a mandatory vaccination policy before they are may require a heavy administrative burden and could expose an employer to discrimination claims in how the policy is implemented.
Employee Education About Vaccination
Given the constantly shifting scientific and legal landscape with respect to COVID-19, one alternative to mandating vaccination may instead be to implement a policy educating and encouraging employees about vaccination. Employers can actively educate employees by keeping lines of communication open and providing ample resources to address employee questions and concerns about the vaccine. Employers can also strongly encourage, early and often, employees to obtain a vaccine as soon as possible. They may aid employees in this effort by offering assistance; for example, partnering with a provider to make vaccines available on the premises free of charge, assisting with locating and scheduling off-site vaccines, providing paid time off for any employee obtaining the vaccine, or offering de minimis incentives such as gift cards for employees who complete their vaccinations. It is important that any incentives are small enough so that they do not have a coercive effect such that the employee would not get the vaccine but for the incentive. Guidance on this particular point from the U.S. Department of Labor is limited, however, because pending regulations from the prior administration have been put on hold by the new administration. This, again, highlights the need for employers to seek the advice of legal counsel when implementing a vaccination policy.
Obtaining Proof of Vaccination
Another important consideration across all types of vaccination policies is whether employers may request proof that an employee received the vaccine. The answer is yes, albeit with caveats. First, EEOC guidance provides that a simple request for objective proof of vaccination (e.g., a vaccination card verifying the date the vaccination was received) does not by itself elicit medical information from the employee, and thus does not constitute a disability-related inquiry that would trigger action under the ADA, for example (which would apply if the employer has more than 15 employees). Where employers can run afoul of the ADA, however, is in asking any follow up questions related to the vaccination that do elicit medical information from the employee. For example, if the employee states that he or she did not obtain a vaccine, the employer may ask why. Employers subject to the ADA must be very careful with such questions, as they are only allowed to the extent the inquiry is job-related and consistent with business necessity. If not, they could expose the employer to liability for discrimination, as employers cannot discriminate against employees based on information obtained in violation of the statue. Employers should not only end the inquiry after the request for proof of vaccination, but to protect themselves they should specifically advise employees not to provide any medical information as part of any proof of vaccination provided.
Regardless of the type of vaccination policy implemented, consistency in application and enforcement is important to avoid claims from employees of discrimination or disparate treatment. At the same time, employers should understand that the policy may need to be adjusted or modified as the vaccine becomes more widely available and new guidance, regulations, and laws applicable to the policy are issued from time to time at all levels. To that end, employers should diligently stay abreast of new developments in this scientific and legal landscape.
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