Coronavirus Replace for March 12, 2021

By Last updated Mar 12, 2021

With nearly 34 million people, or more than 1 in 10 Americans, fully vaccinated against COVID-19, most employers can expect the vaccine to be available to their general workforce soon. Not only are employers keen to return to a semblance of “business as usual”, but they may also want employees to receive COVID-19 vaccinations for work ethic and safety reasons. It is important for employers to consider what their vaccination guidelines are and how they can be implemented to not only meet their business needs, but also to comply with legal requirements. In doing so, employers must take into account the rights, obligations and risks associated with vaccinating employees.

Safety at work

The Occupational Safety and Health Act requires employers to ensure that the workplace is “free of recognized dangers that or can lead to death or serious physical harm to workers”. This “general mandatory clause” may impose an obligation on employers to take action to prevent workers from contracting or spreading COVID-19 in the workplace. On January 29, 2021, OSHA updated its guidance, titled Protecting Workers: Guidelines to Contain and Prevent the Spread of COVID-19 in the Workplace, explaining how vaccines fit into an effective COVID-19 prevention program in the workplace. OSHA recommends employers to include the following in their plans:

Providing vaccines to all eligible employees free of charge;
Providing information and training on the benefits and safety of vaccinations; and
Consistent application of safety standards and protective measures such as wearing face coverings and social distancing to vaccinated and unvaccinated employees

Anti-discrimination laws

Employers considering implementing COVID-19 vaccination guidelines must be aware of their obligations under federal and state anti-discrimination laws. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidelines on What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and other EEO laws to investigate how COVID-19 vaccination is with the Act interacts with requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). The updated guidelines apply previous EEOC guidelines to several COVID-19 specific issues:

Medical examinations and inquiries

The administration of a COVID-19 vaccine to an employee by an employer (or a third party with whom the employer administers a vaccine) is not a “medical examination” for the purposes of the ADA.
Pre-vaccination medical checkups provided by the employer or a contractor on behalf of the employer for the mandatory COVID-19 vaccination are subject to the ADA standard for disability-related inquiries, which requires evidence that the questions are “job-related and consistent with business need. “
Asking or requesting an employee to provide proof of receipt of a COVID-19 vaccination is not a disability-related examination. However, follow-up questions such as why a person was not vaccinated may elicit information about a disability and are therefore subject to the ADA standard that they are “job-related and consistent with business need”.

Analysis of the direct threat / reasonable housing under the ADA

If an employer requires COVID-19 vaccinations in the workplace and an employee states that they cannot get a COVID-19 vaccination because of a disability, the employer must conduct an individual assessment to determine whether the employee is unable to be vaccinated A disability is due poses a direct threat to the workplace.
If an employer determines that an employee who cannot be vaccinated because of a disability poses a direct threat, the employer must determine whether reasonable arrangements can be made to reduce the direct threat without causing undue difficulty. Note that this determination is based on an individual judgment taking into account factors such as: B. whether the employee can be isolated from other employees, whether everyone else in the workplace is vaccinated and the like.
If the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, this does not mean that the employer can automatically terminate the employee. Rather, the employer must determine whether other reasonable accommodation is available, e.g. For example, the ability to work remotely or to take vacation as required by law and workplace guidelines.

Religious objections to vaccination

When an employer needs COVID-19 vaccinations and an employee states that they cannot get a COVID-19 vaccination because of “a sincere religious practice or belief” (as opposed to simply being against vaccination or being afraid of vaccination) , The employer must make reasonable accommodation for religious belief, practice, or observance unless it would constitute undue hardship under Title VII. This is a much lower standard than under the ADA and generally only requires “de minimis” accommodation.
If an employer is unable to provide an exemption or reasonable accommodation to an employee who is unable to comply with a mandatory vaccination policy because of a genuine religious practice or belief, the employer may exclude the employee from the job. However, this does not allow automatic termination of the employment relationship; Instead, the employer must determine if other rights apply under anti-discrimination laws or other federal, state, and local authorities.

GINA considerations

Giving employees a COVID-19 vaccination or requiring employees to provide evidence that they have received a COVID-19 vaccination does not imply Title II of the GINA. However, if the administration of the vaccine requires pre-screening questions related to genetic information, the inquiries for genetic information such as: B. the medical history of family members violate GINA.

Employers must also ensure that their policies and practices regarding vaccination of workers comply with state anti-discrimination law.

Other legal issues

Other legal considerations related to vaccinating employees exist outside the context of discrimination, including, but not limited to:

Public employers should be aware of the restrictions on government measures imposed by federal and state constitutions. These include protection against the regulation of religious beliefs in the first amendment to the US Constitution and protection against the state’s deprivation of certain freedom interests in the fourteenth amendment to the US Constitution.
Employers who have a mandatory vaccination policy should ensure that wages are properly paid under the Fair Labor Standards Act for the time workers need to be vaccinated.
Under workers’ compensation laws, if the worker is vaccinated at the employer’s request, the employer may have to pay for vaccination-related injuries.
Under state tort law, employers can owe a duty of care to employees, salespeople, and customers who enter the workplace and store. The actual duty depends on what is considered “appropriate” at a given point in time. No vaccines are required at the moment and so a reasonable employer might choose not to use them. However, the standard can change over time.
Employers should be aware of potential issues with vaccination policy in the workplace under the National Labor Relation Act (NLRA). Employers in need of vaccination should ensure that such a measure is allowed under an applicable collective agreement. A unionized employer may need to negotiate with the union before implementing a vaccination policy. In a similar context, the employer must assess whether it would be against the NLRA to take corrective action against workers (unionized or not) who engage in sheltered concerted activities against an employer’s mandatory vaccination policy.
State and local laws may require employers to grant paid vacation leave for workers to get vaccinated. In Michigan, the Paid Medical Leave Act requires insured employers to give eligible workers paid leave to receive “preventive medical care,” which could include receiving the COVID-19 vaccine. Employers may also consider offering paid vacation leave for employees to get vaccinated, as suggested by the Centers for Disease Control and local health authorities, and employers may be eligible for a tax credit under the recently enacted American Rescue Plan Act of 2021.
Employers should also check and ensure compliance with all data protection laws when making vaccination compulsory.
Instead of requiring COVID-19 vaccination, employers can run a voluntary incentive vaccination program that can be viewed as a wellness program. Accordingly, employees should be familiar with the requirements for wellness programs under ADA and GINA. Recently, the EEOC proposed rules to regulate what incentives employers can lawfully offer to encourage workers to participate in wellness programs (including those that incentivize COVID-19 vaccines). With the arrival of the Biden administration, however, the proposed rules were withdrawn and are currently being “examined”, so that there are some uncertainties about what incentives might be offered to employees.

CDC recommendations for fully vaccinated individuals

Employers should take into account and continue to monitor guidelines developed by the CDC and local health authorities when developing vaccination strategies in the workplace. On March 8, 2021, the CDC issued a preliminary public health recommendation for the fully vaccinated. The guidance provides that fully vaccinated individuals can visit other fully vaccinated or unvaccinated individuals from a single household with a low risk of severe COVID-19 illness indoors without wearing masks or social distancing. Additionally, the guidelines recommend some quarantine requirements that are more relaxed for fully vaccinated individuals. In particular, fully vaccinated workers from non-healthcare communities and other high-density workplaces do not need to be quarantined after exposure if they are asymptomatic (testing is still recommended). However, the CDC continues to recommend fully vaccinated individuals to take precautions such as wearing masks and social distancing, and to follow instructions from individual employers, among other things.