February 3, 2021
Authored by: Charles Jellinek and Lily Kurland
As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property. This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.
As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program. While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required. As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce. Examples of such alternatives include: encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.
(13) Should employers have a written policy or program? What about training?
Yes and yes. Having a written policy or program will help ensure that employees have notice of the program and understand how and when the program applies to them and the ramifications of non-compliance. It can also establish a process for requesting an accommodation and emphasize the employer’s commitment to legal considerations, such as confidentiality. Managers and Human Resources professionals should receive training to ensure the program is implemented consistently and in compliance with accommodation and anti-retaliation obligations.
(14) If an employer requires vaccination and an employee has a negative reaction or side effects, what protections does the employer have to a potential claim?
If an employer mandates vaccination and an employee becomes ill or injured as a result of the vaccination, it is likely that the illness or injury will be deemed to have arisen out of and in the course and scope of employment, such that the illness will be covered by workers’ compensation laws. Every state is different, particularly regarding the application of the exclusive remedy doctrine for workplace injuries or illness. Employers should also confirm whether the applicable state’s workers’ compensation laws have addressed the vaccine and potential adverse reactions, and continue to monitor guidance from relevant federal, state, and local authorities. We also recommend that employers consult with their workers’ compensation carrier or third party administrator for additional input when implementing a mandatory vaccination policy or program.
(15) May an employer require some, but not all, employees to get vaccinated? For example, should employers mandate vaccines for some workers (those who are essential) but not others (those who can work remotely)? What distinctions should be made for those employees where mandatory vaccines are required?
Vaccine programs are relatively novel and implicate a number of federal and state employment laws; as such, there can be significant risk associated with them. Before implementing a mandatory program, employers should ensure that the program is narrowly tailored to address risks/concerns associated with COVID in the workplace (as opposed to out in public, beyond the workplace). If an employer determines to implement a mandatory program, it is a best practice to require the vaccine (with exceptions for disabilities, religious beliefs, etc.) only for employees who are present on-site. If a remote worker (a telemarketer working from home, for example) has no reason to come on to the employer’s premises, there is no real reason to require such employees to be vaccinated. The employer may, however, restrict access to workplace premises to only those who have been vaccinated.
(16) If an employer is considering vaccinations on employer premises, any do’s and don’ts?
Employers who distribute the vaccine (or contract with a third party to distribute the vaccine) to employees – either on or off site – must be mindful of ADA and Genetic Information Nondiscrimination Act (GINA) obligations. As noted above, guidance from the EEOC suggests that the CDC-recommended standard pre-vaccination screening questions could reveal information about a disability. As such, before conducting any pre-screening of employees, the employer will have to show that the screening questions are “job-related and consistent with business necessity” (i.e. that if the employee does not answer the questions – and thus does not receive the vaccine – the employee will pose a direct threat to the health or safety of himself/herself/others). This analysis will need to be undertaken on an individual basis and clearly documented. The EEOC’s guidance does not make clear whether the pre-screening questions will elicit information about genetic information (and thus implicates GINA). Unlike the ADA, there is no “direct threat” exception under GINA. As such, if the pre-screening questions do disclose genetic information (including family medical history information), then the only way the employer can collect such information is if the employee voluntarily makes the disclosure (and therefore voluntarily participates in the vaccination program).
Rather than distributing on-site, a better option may be for employers to require employees to simply show proof that he/she has received the vaccination. Any documentation regarding vaccination should be kept confidential, and the employer should be sure not to ask any follow up questions that are likely to reveal information about a disability or genetic information.
(17) What are the high level issues an employer should consider regarding whether to implement a vaccine policy or program?
Timing – Right now, implementing a mandatory vaccination program may result in a lot of empty workplaces because there is not currently widespread availability. We do not recommend implementation of a mandatory vaccine program until it appears that there is ready access to the vaccine to the public at large. Even then, an employer will need to consider a reasonable time period in which to get the vaccine, and for those employees who are receiving the two-dose vaccine, how much time will be permitted, and whether employees who have only received dose one can work, or whether the second dose is required.
Scope of Exceptions – The scope of permissible objections based on religion, disability, or other grounds is fairly broad, which will prevent most employers from successfully getting the entire workforce vaccinated.
Potential Scrutiny of Exception Determinations – In recent years, the EEOC has given particular attention to employee claims regarding religious objections to mandatory vaccine programs. As such, if challenged, an employer’s religious accommodation determinations are likely to be subject to scrutiny by the EEOC, companion state fair employment practices agencies, and courts.
Administrative Burden – Determining whether an employee qualifies for an accommodation is an individualized process that may be time-consuming in some cases. Accommodation determinations should be clearly documented and maintained in accordance with applicable federal and state privacy laws.
Response to Employee Refusal – Because COVID vaccines are novel, more employees may object to receiving the vaccine, especially early on. Additional protocols for reviewing accommodation determinations and responding to employees who do not qualify for an accommodation but still refuse the vaccine may be necessary. As with all Human Resources policies, any protocols that are developed will need to be consistently applied to avoid disparate treatment claims. Additionally, as the vaccine becomes more widely disseminated and public health officials learn more, the program may need to be adjusted or modified.
Employee Morale – Implementing a mandatory program may be viewed as draconian, especially if employees have an adverse reaction to the vaccine (although such illness/injury is likely covered by workers’ compensation laws). On the other hand, employees who have not yet returned to the office may be unwilling to do so without assurance that the vaccine will be required in order to protect their health and safety.
Impact on Other Healthy Hygiene Habits – Given that most employees will be vaccinated, employees may lower their guard and fail to take other reasonable precautions, such as washing hands, covering coughs and sneezes, and staying home when sick. Employers should continue to stress that employees be diligent in following all required social distancing, masking and other workplace mitigation protections. Employers should also be cautious before relaxing other restrictions (such as reopening cafeterias, holding large meetings, etc.).
Workers’ Compensation Considerations – It is likely that negative reactions or illnesses from a mandated vaccine would be covered by workers’ compensation laws. We recommend that an employer considering such programs discuss the issue with the employer’s workers’ compensation carrier and/or third party administrator to confirm coverage issues and to align with this important stakeholder.
BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html