With the COVID-19 vaccine finally becoming a reality, healthcare employers, who were first to receive the vaccine for distribution to their workforce, are addressing questions of how to implement vaccination programs. Other employers are thinking about these issues as well, in preparation for the time when vaccines are more widely available. Below, we have addressed many common, and some not so common, questions about vaccines in the workplace.

Q: May Employers Require Employees to Be Vaccinated?

A: Yes, in the context of the current pandemic, subject to exemptions as reasonable accommodations for disability or religious needs. (See Q&As below for further discussion of reasonable accommodations). However, guidance from federal agencies suggests that vaccines be encouraged rather than mandated by employers.

The Centers for Disease Control and Prevention (CDC) currently “recommends,” but does not require, the vaccine for healthcare employees.

The Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements. Notably, the guidance assumes that employers may mandate vaccines under certain circumstances, but employees may be entitled to an exemption under the Americans with Disabilities Act due to a medical condition or under Title VII due to a religious belief. Additionally, in its 2009 Guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the EEOC recognized that an employer can impose a vaccine mandate in the context of a pandemic, subject to religious or disability accommodations. The EEOC further states that employers should “encourage” rather than “require” employees to be vaccinated.

The Occupational Safety and Health Administration (OSHA) issued a letter of interpretation in 2009, providing that employers may impose a vaccine mandate, with exceptions for disability or religious reasons. In a 2014 Guidance, Protecting Workers during a Pandemic, OSHA noted that employers “may” offer vaccines to employees to reduce the risk of infection in the workplace.

At this time, it appears that most healthcare employers are taking the “recommended” approach to a COVID-19 vaccine. Many states have laws that require healthcare employers to make vaccines available to their employees.

Q: Does Emergency Use Authorization Mean the Vaccine Is Not Safe?

A: No, according to the Food and Drug Administration, which is responsible for issuing the EUA, as well as for the normal drug approval process. EUA drugs must meet rigorous safety standards. And there will be continued safety monitoring, just as there is for drugs that are approved through the normal process.

Note, however, that under the statutory authority for the EUA, FDA must ensure that recipients of the vaccine are informed that that they have the option to accept or refuse the vaccine, along with other information, including that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, and of any available alternatives to the product. This information is contained in an FDA fact sheet on the vaccine.

Q: Can Employers Specify Which Vaccine Employees Should Take?

A: Technically yes, although realistically, given the limited supply of vaccines, there may not be a choice.

Q: Who Pays for the Vaccine?

A: The Government says it will be free. How they will accomplish that is yet to be established. Insurance may cover the cost, as with the flu vaccine, but if there is no insurance, employers should cover the cost of any mandated vaccination (and may be required to do so under some states’ laws).

Q: Are Employers Required to Pay Employees for Time Being Vaccinated?

A: It depends on whether the vaccine is being required or recommended. If the employer is requiring the vaccine, it should pay for the time required to get vaccinated, if not done during regular working time. If the vaccine is recommended, but not mandated, then the employer need not compensate the employee for off-duty time spent being vaccinated.

Q: May Employers Ask Pre-Screening Vaccine Questions?

A: Yes. The CDC states that health care providers should ask screening questions to ensure that there is no medical reason that would prevent the individual from receiving the vaccination. The EEOC states that an employer or employer’s agent who is administering the vaccine may ask those pre-screening vaccination questions. Because such questions may elicit information about a disability, however, they may be subject to the ADA’s standard for disability-related inquiries – meaning that the employer must be able to show that such inquiries are job-related and consistent with business necessity. The EEOC notes that, in order to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Any medical information obtained in the course of the vaccination process must be kept confidential under the ADA.

The EEOC notes two exceptions to the “job-related and consistent with business necessity” standard. First, if the vaccine is offered on a voluntary basis, then employees can choose not to answer the pre-screening questions, and the employer can then decline to administer the vaccine but may not retaliate against the employee for that choice. Second, if the employee receives the vaccine from an unrelated third-party provider (like a pharmacy or other health care provider), then the ADA does not apply to that provider’s questions.

Q: Can Employers Require Proof of Vaccination?

 A: Yes. As the EEOC notes, requiring proof of vaccination is not a medical inquiry under the ADA. However, asking why an employee did not get a vaccination might be covered by the ADA as it may elicit information about a disability. The EEOC recommends that employers warn employees not to provide any medical information as part of the proof.

Q: Can Employers Dictate When the Vaccine Is Taken?

A: Yes. There are reportedly some side effects to the vaccine, which may result in an employee being out of work for a day or two. Employers may schedule vaccinations to ensure that the entire workforce is not impacted at the same time. In addition, employers may require employees to get the vaccination before a weekend or other days scheduled off, so that the employee does not miss work time if they experience side effects.

Q: Must Employers Provide Exemptions from a Vaccine Mandate as a Reasonable Accommodation?

A: Yes, as long as the accommodation does not pose an undue hardship. Under the Americans with Disabilities Act (for disability) and Title VII (for religion), employees are entitled to a reasonable accommodation, unless it would pose an “undue hardship” on the employer. “Undue hardship” means “significant difficulty or expense” under the ADA (a high standard), and “more than a de minimis cost” under Title VII (a lower standard).

Q: What Are the Requirements for a Vaccine Exemption Based on a Disability?

A: The employee must have a disability and that disability must prevent them from taking the vaccine. The standard ADA analysis applies – the employee must be substantially limited in a major life activity. Generalized fears about the safety of the vaccine are not protected by the ADA.

Q: What Documentation May Employers Require to Support a Disability Request?

A: Employers may request medical documentation about the employee’s disability and functional limitations, as with any disability. Employers may need to be flexible with regard to the timing of the documentation, given the current burdens on the healthcare system in light of the rising COVID-19 numbers.

Q: What About Vaccine Exemptions for Pregnancy?

A: Pregnant employees may be entitled to an exemption as an accommodations as well.  As the EEOC notes in its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, pregnancy-related conditions may be ADA disabilities. In addition, the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Thus, the ADA reasonable accommodations analysis above applies to pregnant employees seeking an exemption as well.

Q: What Are the Requirements for a Vaccine Exemption Based on a Religious Need?

A: The employee’s belief must be religious and it must be sincerely held. Note that, under Title VII, “religion” encompasses more than traditional or standard religions, but also moral or ethical beliefs that are held with the strength of traditional religious views. Such beliefs must address fundamental and ultimate questions having to do with deep and imponderable matters. Note that beliefs about the safety or necessity of a vaccine, even though strongly held, would be considered medical rather than religious beliefs.

In its Religious Discrimination guidance, the EEOC has identified four (non-dispositive) factors to be used in determining whether a belief is sincerely held:

(a) Whether the employee has behaved in a manner markedly inconsistent with the professed belief;

(b) Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

(c) Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons);

(d) Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Q: What Documentation May Employers Require to Support a Religious Exemption Request?

A: A limited amount of documentation may be required. The EEOC states that “if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.” Thus, as the EEOC noted in its Religious Discrimination guidance, employers may request oral statements, affidavits, or other documents from the employee’s religious leader(s), as well as from fellow adherents (if applicable), family, friends, neighbors, managers, or co-workers who may have observed the employee’s past adherence or lack thereof, or discussed it with them.

However, because religion encompasses more than traditional views, employees may not be required only to submit such letters from religious leaders to support their beliefs. The EEOC recognizes that a statement from the employee describing their beliefs and practices, including information regarding when the employee embraced the belief or practice, as well as when, where, and how the employee has adhered to the belief or practice, may be sufficient support.

Q: Does a Vaccine Exemption Pose a Direct Threat or Constitute an Undue Hardship?

A: It depends on the circumstances. In some circumstances, given that the CDC is asserting that masks both prevent the spread of COVID-19 and can offer some protection to the wearer (depending on fit, material, etc.), the use of masks and other preventative measures may be deemed an effective substitute for the vaccine, and thus a reasonable accommodation for an employee’s request for a mask exemption. This is not necessarily the case in all circumstances, however.

The EEOC states that an employer may exclude from the workplace an unvaccinated employee who poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This requires an individualized assessment that considers four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  Based on this assessment, the employer must determine that an unvaccinated individual will expose others to the virus at the worksite and, further, that there is no reasonable accommodation that would reduce or eliminate the risk.

The EEOC notes that, although an employer can bar the unvaccinated employee from the workplace where it determines a direct threat exists, it may need to consider whether other accommodations are possible or rights are available – such as remote work or leave under the Families First Coronavirus Response Act (which is currently set to expire on December 31,2020), the Family and Medical Leave Act, or employer policy. The employer may rely on CDC recommendations or OSHA guidance in determining whether these accommodations pose an undue hardship.

Q: Can Employers Impose Other Requirements in Lieu of a Vaccine?

A: Yes. Depending on the circumstances, employers could require employees who cannot or will not be vaccinated to wear masks/face coverings, comply with social distancing protocols (maintain 6 feet distance), utilize additional protective clothing or equipment, telework, take leave, or engage in some other appropriate action.

Q: Must Employers Require Employees to Be Vaccinated in Order to Provide a Safe Workplace?

A: Likely not. Under OSHA’s General Duty clause, employers have the obligation to provide a safe work environment. As long as the employer is complying with OSHA and CDC workplace guidance on preventative and remedial measures for COVID-19 in the workplace (which currently does not require vaccinations), an employer would likely be found to have met its obligations under the General Duty clause.

Employers should be careful in how they manage employees who raise vaccine-related safety concerns. Under OSHA, those employees are protected from retaliation for raising such concerns.

Q: Are Employers Liable If an Employee Experiences Adverse Effects from a Vaccine?

A: Likely not. Any related illnesses or injuries would likely be covered by state workers’ compensation programs.

Note, however, that any illness resulting from the vaccination would likely be a work-related illness, which would need to be recorded on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Illness and Injury Incident Report). In addition, there are reporting requirements under OSHA – employers have 24 hours to report if the employee is hospitalized within 24 hours of the vaccination, and 8 hours to report if the employee dies within 30 days of the vaccination.

Q: Are Employees Entitled to FFCRA or Other Leave Due To Adverse Effects from a Vaccine?

A: FFCRA leave does not apply, but other leave may apply. An employee experiencing adverse effects from the vaccine does not meet any of the specified reasons for FFCRA leave – in particular, they are not experiencing symptoms of COVID or have been recommended to quarantine. Statutory sick leave or PTO will apply. And if the employer provides other paid leave, such as vacation or non-statutory sick/PTO, and employees who meet the criteria for the leave may use such leave.

Q: Are Employee Entitled to FFCRA or Other Leave If They Refuse a Vaccine and Get COVID-19?

A: Yes. If they have FFCRA leave available, they may use that – at least until December 31, 2020, when the FFCRA expires. If they have statutory sick leave or PTO available, they may use that.

One nuance – if an employee chooses not to be vaccinated and willfully engages in high risk activity that results in their becoming sick, employers may be able to assert that non-statutory employer-provided paid leave is not available for use.

Q: Should Vaccinated Employees Wear Masks/Face Coverings?

A: Yes. CDC, in its Frequently Asked Questions About COVID-19 Vaccination, currently states that, even after being vaccinated, people “should continue using all the tools available to us” to stop the pandemic, which includes wearing masks, washing hands frequently, and staying 6 feet away from others.

Q: What Can/Should Employers Do About Employees’ Vaccine-Related Concerns?

A: Listen, do not dismiss. This is an uncertain time and people understandably are fearful. Employers should take the time to hear the concerns and try to address them with facts and explanations. Document the discussions. Ultimately, if the employee’s concerns are unreasonable or unwarranted, the employer can still move forward with vaccine requirements. And if an employee refuses to be vaccinated as part of a mandatory vaccination program, and no reasonable workplace accommodation is required or available, the employer may place the employee out of work unless and until they comply with the mandate or the mandate is no longer necessary.

Some employers may question whether they may terminate an employee who refuses to be vaccinated. We note that, under the EUA statute, an individual has the right to refuse the vaccine. Given this statutory right, employers may wish to refrain from terminating the employee, in order to avoid a possible wrongful discharge claim. Rather, the employer might consider other options, such as telework or leave. However, this is complicated, and employers should consult with counsel.

Employers should be careful, however, with any employee expressing workplace safety concerns, as OSHA protects employees who raise such concerns from retaliation. In other words, employees cannot be disciplined for raising such concerns. This is different than not allowing an employee who refuses to be vaccinated to work, as the latter is a safety consideration, not a disciplinary one.

If there is a group of employees expressing concerns about a vaccine mandate – or concerns that an employer is not mandating the vaccine for all employees – this would likely be considered protected concerted activity under the National Labor Relations Act. This does not mean that the employer must yield to their objections, just that those employees may not be disciplined or terminated for merely voicing the concerns.

To the extent that employees are expressing concerns about a vaccine mandate as a political matter, some states have laws that protect legal off-duty political activity. But off-duty laws do not protect workplace activity.

Q: Must Unionized Employers Bargain Over Vaccine Policies?

A: Yes, vaccination policies are mandatory subjects of bargaining, absent contractual authority granting unilateral employer implementation or extra-contractual evidence of a union waiver of its right to bargain over the policy.

A unionized employer should first look to its CBA to determine whether it may unilaterally implement a mandatory vaccination program without first notifying and bargaining with the union.  If no contractual authority exists, the employer should review any past practice of implementing or altering vaccination programs.  Even if the employer is privileged to act unilaterally, either via an expansive management rights clause or a previous waiver-by-inaction on the union’s part, the employer must remain mindful of its obligation to bargain over the effects of its decision to implement a mandatory vaccination program, if requested to do so by the union. Employers should provide sufficient notice to the union before implementing vaccination policies to provide the union with time to bargain over the decision or effects of the mandatory vaccination program.

Q: May Employers Offer an Incentive to Employees to Encourage Vaccination?

A: Generally, yes, a modest incentive would be acceptable. These can include things such as gift cards, paid time off, and cash payments. Note that cash payments may have tax consequences, and employers should consult with accountants or tax counsel.

In addition, employers should be mindful that this may raise a concern that offering an incentive to employees who become vaccinated can have a disparate impact on employees who cannot get the vaccine due to a disability.

Typically, to avoid a disparate impact, employers would want to accommodate employees who cannot earn the incentive due to a disability by permitting them to earn the incentive in another way (e.g., in the context of a wellness program that promotes exercise, disabled employee who cannot run a mile can instead meditate for 15 minutes).  With a vaccine, it seems impossible to articulate a meaningful alternative for disabled employees who cannot take the vaccine, especially because the CDC is indicating that other protective measures (PPE and distancing) should remain in place even after vaccination, so masking is not a suitable alternative as it is in the context of the flu vaccine.  While an incentive could lead to a disparate impact, it is not clear precisely what liability would result from a such a policy. Employers should consult with counsel before implementing such incentives.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-Lerts on any significant developments. 

https://www.laboremploymentreport.com/2020/12/16/vaccines-in-the-workplace-a-practical-guide-for-employers/