With multiple states rolling out phased access to COVID-19 vaccines, many employers are considering whether they want to require employees to be vaccinated, how to encourage employee vaccinations, and the implications of vaccine policies for their businesses. Here are some of the top questions that Perkins Coie has received from its clients.
1. May I make COVID-19 vaccination mandatory for my employees?
Generally, yes, so long as your policy accommodates individuals with disabilities or sincerely held religious objections that prevent them from receiving a COVID-19 vaccine and pregnant or lactating workers. Additionally, some state laws may limit an employer’s right to mandate a vaccine, and collective bargaining agreements or employment contracts may also impose requirements. Currently, the Centers for Disease Control (CDC) has issued recommendations on what populations should receive the vaccine as part of a phase 1 allocation under the FDA’s Emergency Use Authorization. Under these guidelines, healthcare personnel and residents of long-term care facilities should receive the vaccine under phase 1a, persons over 75 years of age, and frontline, non-healthcare essential workers should receive it under phase 1b, and persons aged 65–74 or 16–64 with one or more high-risk medical conditions should receive it as part of phase 1c. In general, states are maintaining the CDC’s prioritizations, with some states making certain adjustments. Employers should not mandate COVID-19 vaccines until vaccines are no longer subject to state limitations on how vaccines are allocated among high-risk groups and are widely available. Employers should also consider whether certain employees, job functions, or worksite locations, such as permanent remote workers, would not pose a direct threat to the health or safety of individuals in the workplace if unvaccinated and should be excluded from the mandate.
2. If I have a mandatory vaccination policy, what do I do if an employee objects? May I fire the employee?
That depends on why the employee is objecting. If the employee objects to getting a COVID-19 vaccine on religious grounds or due to a disability, then the employer must engage in the interactive process to determine whether the employee can be accommodated. There are many factors that go into the accommodation analysis and each objection must be assessed on a case-by-case basis. If the employee objects on other grounds, the employer may exclude the employee from the workplace or possibly even terminate the employee; however, employers should be mindful of checking any state and local laws that may apply. Employers should ensure employees who handle accommodation requests or employee objections are trained on accommodation procedures and the interactive process, and managers are trained about the process for referring accommodation requests. Employees also may object on the basis of political beliefs, and employers should consult counsel to determine applicability of any local laws.
3. May I offer COVID-19 vaccines at the worksite?
Yes, but this decision should be carefully considered. Employers who offer COVID-19 vaccines at the worksite may be liable for losses that arise in administering vaccines to employees, such as when an employee suffers an adverse reaction to a vaccine. Employers may shield themselves from this liability by seeking the protections of the Public Readiness and Emergency Preparedness Act (the PREP Act). Under the PREP Act, covered persons are immune from liability for losses caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration has been issued by the Secretary of Health and Human Services (the Secretary) about the countermeasures. On March 17, 2020, the Secretary of Health and Human Services issued a declaration under the PREP Act specific to COVID-19. Although vaccines would certainly qualify as a covered countermeasure under the declaration, employers should consult with counsel about whether the employer and its vaccination program will satisfy the other requirements of the PREP Act to afford them immunity.
4. Do I need to allow employees to take time off work to get a COVID-19 vaccine, and must I pay employees for the time they spend getting a COVID-19 vaccine?
State and local laws may require employers to provide paid leave for this purpose. If the employer decides to provide vaccines at the worksite or require vaccination offsite during working hours, employees should remain “on the clock” while vaccines are administered. Employers may be required under state and local law to provide paid sick or medical leave in the event employees suffer adverse side effects from a vaccine. Additionally, employers may voluntarily choose to provide additional paid leave in an effort to incentivize employees to get vaccinated even if administered offsite and to alleviate the need for time off in the case of adverse reactions to vaccines. The CDC encourages employers to offer paid sick leave to seek vaccination in the community. The CDC also advises employers offering the vaccine on site to stagger vaccinations to ensure continuity of operations, including for both doses as the side effects of the second dose seem more frequent.
5. Do I need to reimburse employees for the cost of a COVID-19 vaccine?
Employer-sponsored group health plans (whether fully or self-insured) will generally be required to pay for COVID-19 vaccines for employees covered under the plan without cost-sharing. For employees who are not covered by an employee-sponsored group health plan, the requirement for an employer to pay for a COVID-19 vaccine depends on whether the employer has mandated a vaccine and applicable state law. Some jurisdictions may require employers mandating COVID-19 vaccines to reimburse employees for incidental cost and travel expenses for offsite vaccinations. Even if the company is not required to reimburse employees for the cost of vaccines, offering reimbursement may be a strategy to encourage employees to get vaccinated in an effort to reduce lost productivity due to employees becoming infected with COVID-19 or the need to quarantine following close contact with an infected individual.
6. May I require that employees give me proof that they have received a COVID-19 vaccine? If so, do I need to obtain a release allowing me to access vaccine information?
The Equal Employment Opportunity Commission (EEOC) has stated that employers may require proof that the employee has been vaccinated for COVID-19. However, the EEOC suggests that employers consider warning employees not to provide any additional medical or genetic information as part of the proof of vaccination to avoid potentially running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA). (Note that the vaccination process may require some prescreening questioning that could implicate the ADA’s prohibition against disability-related inquiries. This is one reason to consider using third-party providers for vaccination purposes rather than having in-house personnel handle aspects of vaccine administration. Employers administering vaccines should carefully review employment prescreening questions to ensure that they are job-related and consistent with business necessity.)
Although most employers are not “Covered Entities” subject to the Health Insurance Portability and Accountability Act (HIPAA), which governs the use and disclosure of individuals’ health information and establishes strict protocols associated with same, an employer can be subject to HIPAA while acting in the capacity as sponsor of a group health plan. To mitigate risk, employers would be well advised to provide advanced written disclosures to employees regarding the vaccination process, the legitimate business reason for same, and how the employer (or the group health plan) will use, store, and share (if at all) vaccination data of individual employees. Obtaining a signature acknowledgment and consent to a vaccination protocol is recommended, and if a third-party subject to HIPAA is administering vaccines, they should require employees to fill out a valid HIPAA authorization prior to releasing information regarding vaccine status to the employer. If coverage for the COVID-19 vaccine is provided through the group health plan, the employer (as the plan sponsor) must separately comply with all HIPAA policies and procedures applicable to the group health plan as a HIPAA Covered Entity.
Employers should also be cognizant of other state and local laws applicable to personally identifiable information other than HIPAA, especially as they relate to their employee’s health status. HIPAA is only one of many laws that may be applicable with respect to the employees’ private health information and status.
Finally, employers should keep the proof of vaccination in confidential files (similar to employee medical files), separate from employee personnel files, and accessible by only those who have been routinely trained with respect to HIPAA and other laws applicable to an individual’s personally identifiable information with a business “need to know.” If employers administer vaccines in-house, they should also keep any prescreening records in the separate, confidential files. Employers should not disclose which employees have or have not been vaccinated.
7. May I limit/stage vaccine access (e.g., over 65 only, preexisting conditions only, etc.)?
Employers should be cautious of potential discrimination claims if they self-regulate access to COVID-19 vaccines based on perceptions regarding risk factors in their employee pool. That being said, if employers are providing vaccinations in an area where vaccine access is tiered, complying with local, state, or federal orders regarding tiered access should be defensible.
8. May I offer bonuses/incentives for employees who have been vaccinated?
Yes, but employers should be mindful of potential discrimination claims by individuals who are unable to participate in a COVID-19 vaccine program due to disabilities or religious beliefs and, thus, are ineligible for the incentive through no fault of their own. For non-exempt employees, employers should consider how such bonuses/incentives are paid and whether such bonuses/incentives should be included in a non-exempt employee’s regular rate of pay.
9. Following vaccination, may employees be excused from wearing masks, social distancing, and other workplace precautions to limit community spread?
No. The CDC and OSHA currently recommend that individuals who have been vaccinated continue to follow all precautions to limit community spread, including but not limited to mask usage, social distancing, frequent hand washing, and avoidance of crowds and poorly-ventilated spaces. The recommendations are based on the lack of evidence at this time that COVID-19 vaccines prevent transmission of the virus from person-to-person.
How Perkins Coie Can Help
COVID-19 vaccines raise numerous questions for employers and there is no one-size-fits all approach. Rather, the needs of the business and the workforce must be considered when addressing issues surrounding employees receiving COVID-19 vaccines. Perkins Coie’s Labor & Employment, Employee Benefits & Executive Compensation, Privacy & Security Law, and Healthcare attorneys can assist in formulating that approach by:
- Advising on the pros and cons of a mandatory or voluntary vaccination policy, as well as whether to offer vaccines on the employer’s premises;
- Creating vaccination policies and procedures, including releases/indemnification agreements for employer use and review of vaccination protocols proposed by vendors providing vaccination services;
- Training employer personnel on accommodation and leave issues associated with COVID-19 and vaccinations; and
- Advising on HIPAA authorizations and data privacy issues surrounding COVID-19 exposure, notification, and vaccinations, including protocols for internal storage/disclosure of employee vaccine records.