Fourth, Practical Tips for Implementing a Valid Vaccine Mandate Policy
Employers outside of Montana and Tennessee desiring to implement their own vaccine mandate requirement must ensure the following:
1. Draft Vaccination Policy to Notify Employees
Employers should (but are not required to) prepare a written policy to provide advance notice to its employees of the requirements the employer has established. The written policy, at the very least, should include:
- Notice of what the company is requiring;
- What opt-outs or exemptions the company is permitting, including your position on all the exemptions states (above) have ordered and including your expectation of employees in specialized jobs (who work ONLY from outside the office) or (going the other way), who travel on business;
- A definition of what constitutes “fully vaccinated.” The OSHA ETS’ definition of “full vaccination” did not include booster shots. Employers who want to require the added protection of booster vaccine shots may want to include receipt of a booster as constituting “full vaccination.” Also, you need to make clear your position whether you will accept a prior positive COVID-19 virus infection and recovery (and the antibodies that infection produced) as the equivalent of one-shot or booster;
- Discussion regarding the provision of reasonable accommodations and the process for the employee to obtain any such accommodation;
- Description of what documentation an employee must provide the employer;
- Procedures related to handling of positive COVID-19 diagnoses;
- Reservation of the company’s right to amend, withdraw, or enforce the policy;
- Information about any sign-in requirements when working on-site (to aid COVID-19 contact tracers and to potentially limit the number of employees who might have to be quarantined should an outbreak occur in your workforce) despite your vaccination mandate and your other safety and health precautions; and
- A reminder the company will not retaliate against any employee reporting a positive diagnosis of COVID-19, or who reports a violation of the policy.
And, of course, if the employer is unionized, you will have to consider which aspects of your policy trigger a mandatory duty to bargain (including whether you must bargain about the effects of any state law mandates or discretion the statutes repose to the employer).
2. Incorporate Accommodations and Exemptions from Vaccination
At the very least, employers should ensure any vaccine mandate includes an exemption for those individuals the company determines have (a) a religious belief which the employee holds sincerely, or (b) a medical condition that precludes vaccination. Given the requirements of complying with non-discrimination laws, employers need to also include such opt-outs at a minimum to protect against religious and disability discrimination claims.
Whether an employer should allow for other opt-outs or exemptions, like some of the state laws noted above, rests on two main questions. First, is the employer located in a state that has explicitly required additional exemptions in compliance with statutory law? If so, the employer has no discretion and must add those additional exemptions to comply with the state statute.
Second, if the employer is not located in a state mandating opt-outs, does the employer face concerns of potential staffing shortages due to vaccine hesitancy in the workforce? If so, as a practical matter it would behoove a business not to include additional exceptions to assure vaccine-hesitant employees and alleviate potential employee departures. A company whose workforce is already 95% vaccinated has less concern about business disruptions from loss of staffing from a vaccine policy than a company located in a locale with greater vaccine hesitancy.
Employers should be aware of several concerns related to permitting more and more exemptions. For example, the more exemptions the employer permits, the less potential protection they are providing in the workplace. Additionally, if an employer permits moral or philosophical objections to vaccination, the headache caused by attempting to interpret a reasonable objection on those grounds may be difficult for Human Resources to administer.
Moreover, if an employer chooses to permit employees to opt-out of vaccination if they provide, perhaps, a weekly negative COVID-19 test, the employer should consider the issues related to test cost and availability. Contrary to the OSHA ETS, which required employees to bear the cost of testing, it is more likely than not that many state employee reimbursement laws will require employers to bear the costs of a COVID-19 test. Should an employer require testing outside of a government mandate, costs must be borne by the employer (as it would be “equipment” an employer requires of an employee as a term and condition of employment). Check your state law on “employee costs reimbursement” requirements. Also, check with your insurance carrier to see if your medical plan covers employee testing costs. Additionally, given the shortfalls in production of COVID-19 tests and the delay in authorization for certain tests by the FDA, an employer may need to take on the administrative burden to locate and perhaps supply the necessary quantities of vaccination tests and pay for them (and potentially even masks) depending again on state law governing employee business cost reimbursements.
3. Ensure an Interactive Process to Evaluate Accommodations
Employers must ensure they comply with statutory and case law decision requirements to engage in an “interactive process” as to any reasonable accommodation requests they receive for sincerely held religious beliefs or medical conditions. Per the EEOC, this requires an employer to analyze the job involved, consult with the requesting individual to ascertain the precise limitations imposed, consult with the individual regarding potential accommodations and assessing the effectiveness of each, and consider the individual’s stated preference when implementing the accommodation that is most appropriate. Employers should rely upon their experience dealing with accommodation requests unrelated to COVID-19 to inform their handling of vaccination exemption requests.
As to accommodation requests due to a sincerely held religious belief or practice, the EEOC has offered guidance to employers and an example of the form the EEOC itself uses to channel employee requested accommodations. As a practical matter, employers should:
- Rely on their personal knowledge as to the individual to know the person’s religious belief history;
- Have HR become familiar with popular “fake” forms available on the internet being used as justification for religious accommodation;
- Know they can request a written narrative explaining the basis for the individual’s religious objection;
- Ensure the objection is based on an actual religious belief, as opposed to a political ideology or a sentiment for personal freedom; and
- Request a letter or comment from the individual’s religious leader verifying the individual’s religious belief if the employer has an objective, reasonable basis to question the individual’s sincerity (BEWARE: legally risky business!).
As to accommodation requests based on an individual’s medical condition, the U.S. Center for Disease Control (CDC) has issued guidance as to considerations for vaccination based on various health conditions. Generally, there is a very limited set of medical conditions that suggest delaying vaccination against COVID-19; most deal with an allergy to vaccine ingredients, or current infection with COVID-19. During the interactive process, an employer may request documentation from a treating physician substantiating the existence of a medical condition precluding vaccination. If documentation is insufficient or unclear, an employer may request an employee to consent to consultation with another treating physician.
4. Consider Protective Precautions for Those Opting Out of Vaccination
To ensure maximum safety precautions in the workplace, employers may wish to maintain social distancing and PPE requirements popular in first-generation COVID-19 Return to Work policies for those not vaccinated. Prior protections related to cleaning, social distancing, remote work, or face covering will provide the added safety as to unvaccinated employees employers seek in the workplace when instituting a vaccination policy.
5. Adopt Comprehensive Recordkeeping Requirements
To document compliance with any vaccination policy, employers must maintain the necessary records to verify vaccination and evidence for exemption from vaccination. Employers must also ensure they maintain these records as “medical records” and keep them confidential and separate from an employee’s personnel file. Records may include, among others:
- Evidence of full vaccination status;
- Accommodation requests and documentation related to engagement in the interactive process;
- If an employer requires testing to opt out of vaccination, records of test results;
- Identification of COVID-19 positive employees and documentation supporting return to work;
- Documentation required for maintenance by local and federal public health authorities (necessary regardless of implementation of a vaccination policy); and
- Locations and resources for vaccination information and shots.
6. Respond Appropriately to Documentation Requests
Employers should be aware that employees are entitled to access their medical information in the possession of their employer. Furthermore, regardless of any vaccination policy, local and state public health agencies have instituted employer notice requirements to employees of potential COVID-19 exposure from positive cases in the workplace. When providing such information pursuant to request, employers need to comply with the Health Insurance Portability and Accountability Act (“HIPAA”). This requires not disclosing a specific employee’s medical information to other employees. Thus, employers responding to medical information requests should ensure the information provided is specific to the requesting employee. Furthermore, when providing notice of potential COVID-19 exposure, employers must “hide” the identity of infected individuals.
7. Provide Paid Time Off for Vaccination and Its Effects
The guidance of most state wage-hour divisions has noted that time off for purposes of getting vaccinated, or recovering from any side-effects of vaccination, are subject to paid time off policies employers provide. Time off to recover from potential side-effects is typically also covered by any sick leave or family leave laws applicable to an employer. Thus, employers must establish paid time off availability to employees getting vaccinated or suffering effects from vaccination during work hours.
8. Follow Public Health Guidelines in Terms of Positive COVID-19 Cases
Finally, employers should familiarize themselves with the local or state public health guidance related to quarantine and when an infected individual can return to work upon a positive COVID-19 diagnosis. For example, California recently updated its Cal/OSHA Emergency Temporary Standard related to COVID-19 to reflect, among other things, updated isolation periods depending on an individual’s vaccination status. Thus, employers should set return to work timelines following infection based on applicable local public health instructions.
As noted above, there is an abundance of information an employer must consider when instituting a vaccination policy within its workplace. However, provided an employer complies with the requirements related to providing accommodation, any such policy is likely to pass legal muster as a contractual agreement between private parties. Employers interested in instituting such a policy should consult with their employment counsel to ensure compliance with the requirements described above.