Quarles & Brady LLP

With the highly-infectious B.1.617.2 (“Delta”) variant circulating, and the national vaccination rate at only approximately 51% fully vaccinated, many employers have been forced to reconsider and often delay their return-to-work plans. Now, many employers are exploring mandatory vaccination programs, which have become more feasible in recent months with the wide scale availability of vaccines and impending vaccine approval by the Food and Drug Administration (“FDA”). At the same time, although large heath care systems initially led the way in early adoption of mandatory vaccination policies, a wave of recent announcements of similar policies by major employers across a wide variety of industries is causing many businesses to do likewise, or at least consider doing so.

Before implementing mandatory vaccination policies, it is critical that employers have a “game plan” to address several key areas of consideration. Such a game plan should include risk assessment, the development of clearly-defined policies, strategic communications, protocols for collecting documentation, and processes for reviewing exemption requests. These issues and more will be thoroughly detailed as part of Quarles & Brady’s upcoming September 8 webinar, “COVID-19: Critical Fall Planning and Management Issues for Employers," with registration opening soon.

At minimum, employers currently considering the possibility of requiring employee vaccination should take the following steps before implementing or expanding their vaccination programs (or deciding not to do so):

Conduct a Risk Assessment. A threshold question for any employer considering a mandatory vaccination program is whether such a policy would benefit the business. To answer this question, employers should assess several factors, starting with the percentage of the workforce that is fully vaccinated. If employers do not currently know the rate at which their workforce is vaccinated, they should start by collecting that information from their employees so that they can best evaluate their current risk profile and what measures are most appropriate for their workplace. A common misconception is that asking about vaccination status is somehow “prohibited” on medical or privacy grounds. That is not currently the case anywhere in the United States (although employers should be alert for any new prohibitions in light of the evolving politicization of the vaccination issue). The safe question is any version of whether the person is currently or will shortly be fully vaccinated, with just a “yes” or “no” answer—with no explanation, follow-up questions, etc.

Other important initial factors employers should consider include whether state or local law prohibits mandatory vaccination policies, whether state or local law provides any liability immunity for employers that have taken COVID-19 precautions (e.g., mandating vaccines), rates of community transmission, applicable industry standards, the type of business operation, level of employee interaction (internally and externally), etc.

Determine the Parameters of Your Policy. Employers who have not already implemented measures to encourage employees to receive the COVID-19 vaccine and want to increase their rate of vaccination should start by taking steps such as: circulating updated educational materials regarding COVID-19 (and the increased risks employees face from the Delta variant), actively supporting and encouraging vaccination (often from the top down), providing local vaccination sites, facilitating vaccination (e.g. time off, offering vaccines onsite), and providing financial or other incentives.

If an employer has already taken steps to encourage or incentivize vaccination, they may want to consider escalating their approach in order to increase the percentage of their workforce who is fully vaccinated. Such approaches may include:

  • Mandatory vaccinations as a condition of employment - This approach requires employers to terminate employees who do not become fully vaccinated (or receive an approved exemption) by a specified date. Although this is the most stringent approach, employers who implement this option provide the maximum workforce protection from COVID-19. Employers facing worker shortages have been reluctant to take this path for fear of losing existing employees and further reducing the pool of candidates who are interested and eligible for hire. Whether and how this concern evolves remains an open question.
  • Vaccinations as a requirement to return to the workplace or attend work-related events - While this approach means an employer will not achieve a 100% vaccination rate among their entire workforce, those operating within the business's brick and mortar locations will all be fully vaccinated. This reduces the risk of liability and allows the employer to potentially loosen some of their COVID-19 protocols.

Along these same lines, some employers may extend this limitation to include all work-related events as well. For example, an employer may choose to enforce a policy that states employees who are not fully vaccinated against COVID-19 will be prohibited from participating in certain business affairs, such as attending networking events, traveling to trade shows, or visiting with clients.

  • Vaccinations as an exemption or reduction from some COVID-19 safety measures - Some employers may take inspiration from the recent move made by the federal government (as announced by the Biden Administration on July 29, 2021) and disincentivize being unvaccinated by enhancing safety measures such as requiring unvaccinated employees to wear a facial covering in the workplace at all times, maintain social distancing, submit to COVID-19 testing on a regular basis, be barred from certain areas or amenities (e.g. cafeteria, break room), etc. While this approach leaves the decision whether to become vaccinated up to the employees, the strong disincentives imposed by the employer may be enough to drive up vaccination rates among the workforce.

Create a Communication Strategy. Employers must determine how and when they will deliver their new or updated vaccination policy to their workforce. With respect to timing, employers will need to account for the fact that some employees will have not received either shot of the COVID-19 vaccine and may require up to 4-5 weeks to become “fully vaccinated” as defined by the CDC, depending on which vaccine they receive.

As far as how employers should inform their workforce that changes to the employer’s vaccination policy are coming, employers should: articulate the reason for enforcing such policy; explain how employees will demonstrate compliance; be clear what the consequences are for noncompliance; offer support to employees who have concerns; and explain that reasonable accommodations are available for qualified individuals based on medical needs or religious beliefs. Employers should consult their local Quarles & Brady employment counsel to develop an effective communication strategy.

Plan How to Verify Vaccination Status. Integral to a mandatory vaccination program is verification of vaccination status. To confirm whether employees have been vaccinated, employers should require their workers either to: (1) attest their vaccination status, or (2) submit proof of vaccination.

For employers that opt to require attestation of vaccination, employers should generate attestation forms that clearly communicate the employer’s vaccination policy and any potential penalties for dishonestly or non-compliance. A strong sample of such an attestation form is the federal government’s Certification of Vaccination, which was recently implemented for all federal employees.

For employers that instead opt to seek proof of vaccination, the following are acceptable documents to substantiate vaccination status: a vaccine card issued by the Centers for Disease Control and Prevention (“CDC”), formal documentation from the healthcare provider or health department that issued the vaccination, or a digital vaccine certificate. Proof of vaccination should be confidentially maintained separately from personnel records, and employers should refrain from requesting any medical information apart from proof of vaccination—so as not to run afoul of the Americans with Disability Act (“ADA”).

Regardless of whether an employer requires its employees to attest their vaccination status or submit documentation of vaccination, employers should maintain all vaccine-related records and continually monitor workplace vaccination rates. For further guidance on how to safely navigate the vaccination verification process, contact your local Quarles & Brady counsel or join us for the upcoming webinar.

Prepare a Process for Exemption Requests. As we have explained in prior alerts, employers that implement a mandatory vaccination program must provide a way for employees to seek exemptions to vaccination requirements for those with certain medical and religious objections.

Specifically, the ADA requires covered employers to provide reasonable accommodations to qualified applicants and employees with a “disability,” unless they can demonstrate that doing so would create an “undue hardship” or pose a “direct threat.” In addition, Title VII of the Civil Rights Act of 1964 (“Title VII”) requires covered employers to accommodate an employee's “sincerely held” religious belief, unless doing so would cause “undue hardship.” It can be confusing and frustrating to employers to learn that although the basis for requesting exemption use the same “undue hardship” language, the standards for applying those tests are not the same.

To ensure that all disability-related or religious-based objections to a mandatory vaccine policy are handled in a non-discriminatory, confidential, and compliant manner, employers should establish a clear procedure for requesting and evaluating exemption requests. Because medical and religious exemption requests and the related determinations of what constitutes a “sincerely held” religious belief, a “disability,” a “direct threat” and “undue hardship” require careful consideration, employers should confer with counsel to determine how to best respond to mandatory vaccination policy objections. Additionally, this important and multi-layered topic will be covered in-depth during the upcoming webinar.

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