With mass COVID-19 vaccination efforts well under way across the country, many employers are wondering if the vaccine can be required in the workplace. The short answer is yes – but it’s complicated.
In a recent BHCOE webinar, Best Practice in Setting Up a Vaccination Program at Your ABA Organization, labor and employment law attorney Michael Oliver Eckard, with Ogletree Deakins, shared some considerations and guidance to help you determine how to structure a vaccination policy for employees.
While Operation Warp Speed outlines a federal distribution plan and recommendations on how states should prioritize the vaccine doses, it is up to the states to determine how the doses are distributed. As an employer, it’s important to find out how your state has prioritized distribution and where your employees fall within the priority list.
“There is significant variation from jurisdiction to jurisdiction, so you’ll want to make sure you understand the options and obligations in your areas,” says Eckard.
BHCOE recently rolled out a resource to help you find COVID-19 vaccines in your state and county. In addition, now is the time to establish a vaccination policy for employees. Eckard’s law firm has developed a model vaccine policy that you can adapt to suit your organization’s needs. A key step in developing your policy is deciding whether you’ll make vaccines mandatory or voluntary.
Mandatory COVID-19 Vaccinations: Considerations and Pitfalls
The Equal Employment Opportunity Commission (EEOC) released guidance last month to address COVID-19 vaccines in the workplace. The guidance says that a mandatory vaccine policy is lawful under the Americans with Disabilities Act (ADA), provided you offer disability and religious exemptions. It’s also OK to ask employees to show proof of vaccination, although asking an employee why he or she did not get a vaccination may not be allowed. The EEOC also clarifies that administering the vaccine does not violate the Genetic Information Nondiscrimination Act (GINA).
If you adopt a mandatory COVID-19 vaccination program, there are a number of considerations to evaluate related to exemptions for disability and sincerely-held religious beliefs. When an employee requests a disability or religious exemption, under federal employment laws, the employer be aware of the following guidelines:
- You must be able to provide reasonable accommodations to employees who cannot get the vaccine because of a disability or religious beliefs. Accommodations include simply not requiring a person to get vaccinated, a job reassignment or requiring the individual to wear protective gear. What is protected under disability and religious exemptions varies significantly across jurisdictions, so it’s important to do your homework.
- You may not screen out employees or exclude them from the workplace unless you can first show that an unvaccinated person would pose a direct threat due to a significant risk of harm to the health or safety of themselves or others in the workplace that can’t be eliminated or reduced by reasonable accommodation.
“When determining whether a person creates a direct threat in the workplace, this is where herd immunity becomes relevant,” says Eckard. “If 90 percent of your employees have been vaccinated, it may be difficult to show that the 10 percent who haven’t received the vaccine pose a direct threat.”
- If an employee is physically excluded from entering the workplace because he or she hasn’t been vaccinated, you must consider other accommodations that may apply, such as remote work or leave, before moving to terminate the employee for refusing to get the vaccine because of disability or religious beliefs.
According to the EEOC, if an employer administers a mandatory vaccination program to employees itself, or contracts with a third party to do so, there are considerations around vaccination prescreening questions. First, questions about a disability can only be asked if it is job-related and consistent with business necessity. Second, prescreening questions that ask about family medical histories may be prohibited by GINA.
Prescreening question issues are avoided if you offer vaccines on a voluntary basis or if you require employees to receive the vaccine from a third party that is not under contract with your organization.
Before implementing a mandatory vaccination program, employers should consider a couple of final legal issues. If employees are unionized, you may have an obligation to bargain with the union before rolling out a mandatory vaccination program. Workers’ compensation laws may come into play for employees who experience vaccine-related injuries under a mandatory vaccine policy.
A Voluntary Approach to Vaccination
With all of the considerations and pitfalls of adopting a mandatory vaccination policy, consider whether encouraging, rather than mandating, vaccines is a better approach. While voluntary programs may result in fewer vaccinated employees, the benefits of reduced administrative burden and disputes related to exemptions may outweigh the drawbacks.
If you plan to structure a voluntary program, there are a couple of considerations. Think about whether you will offer just the COVID-19 vaccine or tie it into an influenza vaccination program.
Second, consider creating incentives to encourage employees to get the vaccine. Incentives can include paying for transportation to and from vaccination sites, paid time off to get vaccinated and financial incentives. If you provide financial incentives for receiving the vaccine, be aware of HIPAA wellness program rules. For employees who cannot get the vaccine due to disability or religious belief, offer another means to get the incentive, such as by showing a doctor’s note.
Bottom line: Organizations should think carefully about how to structure an employee vaccination program and then do some advance planning for a successful rollout.
For more information on Best Practices in Setting Up a Vaccinations Program at Your ABA Organization, watch the full webinar.
Download BHCOE’s Checklist, 6 Steps for Establishing a COVID-19 Employee Vaccination Program