Many employers are trying to decide whether to require their employees to get vaccinated against Covid-19 and how to manage a vaccination program. Employers want to provide safe workplaces and also want to avoid lawsuits from an increasingly litigious workforce. The following is a checklist of some of the considerations for employers exploring a vaccination program for their workforce.
Given the complexities and risks of these issues, employers may consider working closely with legal counsel to establish and update policies and practices.
UNIONS AND COLLECTIVE BARGAINING AGREEMENTS
Are the employees represented by a union? If so, implementing any vaccination program is likely a mandatory subject of bargaining. See, e.g., Virginia Mason Hospital v. Washington State Nurses Association, 511 F.3d 908 (9th Cir. 2007) (“we must recognize that the public policy favoring effective infection control in hospitals is not the only public policy potentially relevant to this issue. There is also a clearly established public policy requiring employers to bargain with their union-represented employees over conditions of employment”).
- Tip – Offer the union an opportunity to bargain about any mandatory vaccination program.
Employers may find it informative to review applicable union websites for their public opinions regarding vaccination programs. For example, the Service Employees International Union (SEIU) lists principles for vaccinations suggesting that employers should provide education and encouragement rather than mandating vaccines. Likewise, the SEIU maintains that employers should provide paid time off for any time off related to vaccinations and that vaccines should not be used in place of the employer’s obligations to provide safety equipment. See https://www.seiu.org/principles-on-covid-19-vaccination.
WHO MIGHT BE EXEMPT FROM A MANDATORY VACCINATION PROGRAM?
Federal anti-discrimination laws for employers with 15 or more employees require covered employers to make reasonable accommodations for employees with disabilities, pregnancy and those with religious needs to enable the employees to perform their essential job functions. Increasingly, state and local laws also require employers to make reasonable accommodations for those and other reasons, including childbirth, breastfeeding and related medical conditions, as well as for employees and their family members who have experienced domestic violence, criminal harassment, sex offenses or stalking.
Employers may face a number of issues when handling possible exemptions. Here are some essential tips:
- Allow employees to request exemptions for lots of reasons.
- Be prepared to go through the interactive process to determine if there is an appropriate reasonable accommodation which will enable requesting employees to perform their essential job functions. Note that states and municipalities may require a more extensive interactive process under their anti-discrimination laws than under federal law. For example, the New York City Human Rights Law requires employers to engage in (and to document) a “cooperative dialogue.”
- Disability exemptions may be broader than medical requirements. For example, an employee who does not have a medical contraindication for a particular vaccine’s ingredients (and thus may not qualify for a medical exemption under state school vaccination laws), may have a history of panic attacks with vaccinations (which may make the employee eligible for accommodation for a disability). See, e.g., Ruggiero v. Mount Nittany Medical Center, 736 F. App’x 35 (3d Cir. 2018) (unvaccinated registered nurse with severe anxiety and esophagitis who was terminated for failure to get vaccinated (TDAP) stated a claim under the Americans with Disabilities Act).
- Religious exemptions may be broader than the requirements of organized religions. See the Equal Employment Opportunity Commission (EEOC) Guidance, Section K.12 (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) – “the definition of religion is broad and protects beliefs, practices and observances” connected to a “sincerely held religious belief.” See also Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, No. 16-3575 (3d Cir. Dec. 14, 2017) (simply worrying about the health effects of the flu vaccine and disbelieving the scientifically accepted view does not amount to a religious objection; the concern that a vaccine may do more harm than good is a medical concern, not a religious one).
- Documenting exemption requests. Tips for documenting exemptions and the interactive process include –
- Keep exemption requests on a need to know basis.
- Treat all vaccination records as well as exemption requests as confidential; do not keep these records in the employee’s personnel file, and share the information only on a need to know basis.
- The interactive process should be individualized rather than one size fits all.
- Consider requiring personal statements of deeply held belief rather than a note from the employee’s pastor or religious leader.
- Potential accommodations. According to the EEOC: “Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.” EEOC Guidance, K.5.
- Tip – Consider the middle ground. In many workplaces, there may be opportunity for compromise beyond either getting a vaccine immediately or never getting one.
- May employers treat unvaccinated employees who qualify for an exemption differently by keeping them away from the physical workplace? According to the EEOC, if an employer’s “safety-based qualification standard, such as a vaccine requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated individual with a disability would pose a direct threat due to the significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” EEOC Guidance, K.5.
- How can an employer determine if an unvaccinated employee poses a direct threat? According to the EEOC’s most recent guidance, relevant considerations include, “the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.” EEOC Guidance, K.5.
- Also relevant to the individualized assessment of direct threat are such factors as (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood the potential harm will occur; and (4) the imminence of the potential harm. The EEOC suggests that employers can rely on a reasonable medical judgment that relies on the most current medical knowledge about Covid-19, which may include the level of community spread, statements from the CDC and the employee’s health care provider. EEOC Guidance, K.5.
- Sick employees may be told to stay home. Of course, an employer may exclude those with Covid-19 or symptoms associated with Covid-19 from the workplace, because “their presence would pose a direct threat to the health or safety of others.” EEOC Guidance, A.8.
WAGE AND HOUR CONSIDERATIONS
Must vaccine-related time off be paid? Excused? What about the cost of providing the doctor’s note?
DOL Guidance. The U.S. Department of Labor takes the position that the federal Fair Labor Standards Act requires employers to pay employees for “time spent waiting for and receiving medical attention at [the employer’s] direction or on their premises during normal working hours.” https://www.dol.gov/agencies/whd/flsa/pandemic#7 (Question #7) (May 18, 2021). State and local wage and hour laws may have similar requirements.
Be aware of state and local sick time laws. State and local laws (both general sick time laws and laws specifically targeted to Covid-19 vaccination) may require paid time off or protected unpaid time off for employees who take time to get vaccinated and for adverse reactions to the vaccine. Increasingly, municipal ordinances and some state laws require paid or unpaid excused time off for employees who help family members to get medical treatment. These laws may also extend to helping someone get a vaccine and/or caring for someone who has an adverse reaction to the vaccine.
Be aware of state and local laws requiring employers to reimburse employees for the cost of medical records. For example, Pennsylvania law provides: “It shall be unlawful for any employer to require any employe or applicant for employment to pay the cost of a medical examination, or the cost of furnishing any medical records, required by the employer as a condition of employment, if the applicant or employe works for the employer for one work week: Provided, That the provisions of this act shall not apply where medical examination is required by law as a condition of employment.” 43 P.S. Labor §1002.
The Americans with Disabilities Act (ADA) requires employers to keep any employee medical information obtained in the course of the vaccination program (or from any other source) confidential. EEOC Guidance, K.3. This typically means the medical information is stored in locked files apart from personnel files and accessible only to persons with a need to know.
The EEOC has said that asking or requiring an employee to show proof of receipt of a Covid-19 vaccination in the context of a voluntary vaccination program is not a disability-related inquiry prohibited under the ADA. However, employers may want to warn employees “not to provide any medical information as part of the proof in order to avoid implicating the ADA.” EEOC Guidance, K.9. In comparison, any medical information collected in the course of a mandatory vaccination program may be considered confidential information. EEOC Guidance, K.7.
EMPLOYER-HOSTED VACCINATION CLINICS
The EEOC advises employers who host vaccination clinics to double-check that pre-screening vaccination questionnaires do not include any questions about genetic information including family medical history. The EEOC has approved the use of a questionnaire during the vaccination pre-screen that avoids asking such questions. EEOC Guidance, K.14. Additionally, employers may want to warn employees not to provide genetic information, for example by using the Genetic Information Non-Discrimination Act (GINA) safe harbor language. 29 CFR 1635.8(b)(1)(i).
Some employers are also considering rewarding employees who get vaccinated.
The DOL Guidance instructs that the value of a one-time vaccine incentive need not be included in the regular rate of pay for overtime eligible employees in calculating overtime. https://www.dol.gov/agencies/whd/flsa/pandemic#23
The recent EEOC Guidance cautions that covered employers – private sector employers, both for-profit and nonprofit, with 15 or more employees – are not permitted to coerce employees into sharing medical information. Thus, the EEOC references two types of incentive programs: (1) an incentive program where employees are vaccinated by a third party; and (2) an incentive program where employees are vaccinated by the employer or its agent. The EEOC has not provided any limitations to the incentives under the first type of incentive program. Incentives to participate in programs that fall under employer-sponsored programs must not be so substantial an incentive that the program is coercive.
EMERGENCY USE AUTHORIZATION (EUA)
The Covid-19 vaccines currently have Emergency Use Authorization (EUA) from the Federal Drug Administration (FDA). Does this mean that employers cannot mandate the vaccines to the same extent they might mandate vaccines with full authorization? Not necessarily. Rather, the EUA law requires that the patient fact sheet associated with an EUA vaccine include all known and potential benefits and risks and inform individuals “of the option to accept or refuse administration of the product, [and] of the consequences, if any, of refusing administration of the product.” 21 USC §360bbb–3(e)(1)(A)(ii)(III). Thus, the law does not preclude there being employment “consequences” for refusing to take the vaccine. There is, however, little guidance as to the extent of such consequences.
Several schools and employers that announced vaccine mandates have stated that students or employees will be required to get a vaccine “approved by the FDA”, apparently hoping that full FDA approval will be secured for each of the Covid-19 vaccines prior to the starting date for their vaccination program.
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) REPORTING
Earlier OSHA guidance had suggested that employers must track adverse reactions to mandated vaccines on OSHA 300 logs. However, OSHA has updated its guidance to state that it will not require employers to log adverse reactions as OSHA does not want to “disincentivize employers’ vaccination efforts.” https://www.osha.gov/coronavirus/faqs#vaccine. Rather, “OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022.”
Employers should consult with legal counsel to discuss your workforce’s needs and to develop a vaccination policy or program. Additional developments are likely.