What an Employer Must Know Concerning the COVID-19 Vaccines: Mandates, Incentives, Lodging and Different Concerns

As the first doses of vaccines are being administered, many employers, cognizant of the public health imperatives and a desire to promote the health of their employees in a manner compliant with applicable law, are wondering whether they can or should make vaccination a required condition of employment. On December 16, 2020, the EEOC issued its much-anticipated guidance on the application of federal anti-discrimination laws to issues concerning the availability of COVID-19 vaccines. While the EEOC’s guidance answers some questions, the broader message is that it is not that simple, and many employers will opt to adopt incentive-based vaccination programs instead of mandatory ones based on their own individualized assessment of competing factors.

This advisory is intended to assist employers in evaluating these competing concerns by summarizing key points from the EEOC’s guidance and by identifying additional issues for employers to consider when formulating policies concerning COVID-19 vaccines. Each employer should review these same questions under state and local law as standards may differ from that provided at the federal level.

Can Employers Require Employees to Get Inoculated Against COVID-19 as a Condition of Employment?

Possibly, depending upon location, workplace and industry. According to the EEOC, nothing in the ADA or Title VII of the Civil Rights Act precludes employers from conditioning employment on an employee’s provision of proof of receipt of the COVID-19 vaccine. That is not, however, the end of the analysis.

Employers with collective bargaining agreements may have to navigate the National Labor Relations Act and existing contractual obligations before rolling out such a program. The risks of labor activity such as strikes or work stoppages around implementing a vaccination program (whether that is requiring vaccinations or affirmatively choosing not to) should also be considered.

Additionally, states have varying standards for whether vaccines can be mandated, and these standards are often more restrictive than federal law. For example, Oregon prohibits some employers from making immunization a condition of employment unless another law affirmatively requires it.

Practical implications of implementing such a policy should also be considered. One such concern is that the vaccine is currently available to only a small segment of the American population. Incremental rollout of vaccines from various manufacturers also means that it will not be possible for all employees to get vaccinated at the same time, or even within weeks or months of one another. Various states have implemented vaccine allocation guidance, and early prioritization is generally focused on: high-risk workers in the health care setting, high-risk first responders, and residents and employees of assisted living facilities. Mandating immediate vaccination for an entire workforce will thus be a practical impossibility for logistical reasons beyond the control of most employers outside these high-priority sectors.

As the vaccine becomes available to certain segments of the workforce (including, for example, those in health care, assisted living facilities, and education), employers in those sectors may have a greater degree of latitude with regard to their vaccination policies. But for now, the issue of whether most employers may require employees to get vaccinated remains largely academic.

Does Requiring a Vaccination Trigger the Accommodation Process Under the ADA and Title VII of the Civil Rights Act?

Yes. Employers that require vaccinations must be prepared to extend reasonable accommodations to employees with disabilities or sincerely held religious beliefs that preclude them from getting inoculated. Only when a reasonable accommodation is unduly burdensome can the employer lawfully exclude these employees from the worksite. The EEOC’s guidance makes clear, however, that “[t]his does not mean the employer may automatically terminate the worker.” Rather, the employer should engage in an interactive process with the employee to determine the extent to which, if at all, a reasonable accommodation may allow the employee to perform the essential duties of the position without imposing an undue hardship on the employer. The EEOC’s guidance specifically identifies a remote work arrangement as a possible reasonable accommodation in such circumstances. Recent months have caused many employers to transition to a remote working arrangement. Those employers should be prepared to identify factors that now preclude employees who object to the vaccine for reasons related to a disability or their religion from continuing to work remote.

Other federal laws, including the Family and Medical Leave Act (“FMLA”), or state paid sick and paid family and medical leave laws, may provide additional measures of job protection. Employers should consult with counsel to determine the extent to which an employee’s request for leave or an accommodation may be protected under applicable law, including at the state and local level.

What Is the Standard for Determining Whether an Unvaccinated Employee Poses a Direct Threat to Others in the Workplace?

Employers are under a duty to implement policies and practices that ensure workplace safety for employees. But under the ADA, an employer may exclude an employee from the workplace for medical reasons only if their condition poses a “direct threat” to themselves or others.

To show that an unvaccinated employee would pose a direct threat, the employer “[must have] a reasonable belief, based on objective evidence,” that an employee who does not receive a vaccine will pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). This, in turn, requires an individualized assessment of four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.

Employers are under a duty to apply this test on a case-by-case basis, which means that an employer’s options may depend upon a specific employee’s job description. Moreover, any conclusion that a direct threat exists will also require, as per the EEOC guidance, “a determination that an unvaccinated individual will expose others to the virus at the worksite.”

Notably, the direct threat determination will change over time as the COVID-19 vaccines become more readily available to the general public. Under the EEOC’s guidance, “[t]he prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.” Thus, as a greater proportion of the workforce becomes resistant to COVID-19 (either through vaccination or prior exposure), there may come a time when a single unvaccinated employee in the workplace does not pose a direct threat to others in the workplace.

Are Vaccinations Medical Examinations Under the ADA?

No. The EEOC’s guidance makes clear that proof of COVID-19 vaccination does not constitute a medical examination under the ADA because the procedure is not likely to elicit sensitive health or disability-related information about an employee. For the same reason, conditioning employment on proof of a COVID-19 vaccine does not implicate the Genetic Information Nondiscrimination Act (“GINA”), as proof of a vaccine does not elicit genetic information about an employee that employers will use in making employment decisions.

With that said, screening questions administered before a vaccine is administered may constitute a “medical examination” under the ADA. Questions that elicit genetic information (including by asking about family history) can also implicate the protections extended under GINA. Employers that require vaccination and administer those vaccinations either directly or through a third-party health care professional or pharmacy are therefore advised to review their screening questions for consistency with the “job-related and consistent with business necessity” standard. And, once again, state laws may take a different view.

Can an Employer Request Proof of Vaccination?

Yes. The EEOC’s guidance explains that requesting proof of having received a vaccination is not a disability-related inquiry so long as the employer does not ask why an employee has not received one. Such questions may elicit information about an employee’s disability and, therefore, may be asked only if they are “job-related and consistent with business necessity.”

With that said, any sensitive health information acquired by an employer, regardless of how it was obtained, must be kept confidential – even if that information is obtained by means other than a disability-related inquiry.

Can an Employer Discipline an Employee Who Refuses to Get Vaccinated in Violation of a Mandatory Vaccination Program?

If an employer mandates that employees get the COVID-19 vaccine and an employee refuses to provide proof of vaccination for reasons unrelated to a disability or religious belief, the employer may take corrective action against that individual. However, recent public opinion polls show that a significant portion of the American population has concerns about the vaccine’s safety, notwithstanding FDA approval. Given these attitudes, disciplining employees who refuse to get vaccinated could have a detrimental effect on employee morale.

That being said, employers may prefer to take these disciplinary actions against individuals who refuse to get vaccinated for reasons unrelated to disability or religion, rather than accept the risk presented by exposing colleagues (or customers, vendors, and contractors) to a workplace with a population of unvaccinated employees. See this advisory for more information about the interplay of the Occupational Safety and Health Act (“OSHA”) and COVID-19.

Are Vaccine-Related Injuries Covered by Workers’ Compensation Laws?

Employees who experience an adverse reaction to a vaccine administered pursuant to an employer’s vaccination policy may be entitled workers’ compensation benefits. Some states, like Washington, have determined that certain classes of employees, such as first responders and healthcare workers, who test positive for COVID-19 are presumed to have been exposed to the virus while at work for purposes of workers’ compensation claims. While clear guidance on the issue of vaccinations remains pending, it is reasonable to presume that individuals who suffer adverse reactions from the vaccine may also obtain workers’ compensation coverage, especially if the vaccine is administered pursuant to an employer’s mandatory vaccination policy. Additionally, in jurisdictions extending paid sick leave, employees may take job-protected leave under those statutes for time away from work due to adverse reactions from the vaccine.

Relief for those who experience an adverse reaction to the vaccine may also be available under the federal Countermeasure Injury Compensation Program, which was recently extended to cover individuals harmed by the COVID-19 vaccine.

Are there Liability Protections for Those Who Administer the Vaccine?

Yes. The Public Readiness and Emergency Preparedness (“PREP”) Act confers tort liability immunity under federal and state law to “covered persons” with respect to all claims for loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration or use of a “covered countermeasure” against a declared public health emergency. In March 2020, the Secretary of Health and Human Services (“HHS”) declared COVID-19 a public emergency pursuant to the PREP Act, conferring broad immunity for those combating COVID-19.

COVID-19 vaccines that have been granted Emergency Use Authorization are covered countermeasures and qualify for immunity under the PREP Act. Immunity extends to “covered persons” which includes a licensed health professional or other individual who is authorized to prescribe, administer or dispense the vaccine under the laws of the state in which it is prescribed, administered or dispensed. Individuals who are lawfully administering COVID-19 vaccines are therefore protected against personal injury and/or property damage claims in connection with administering the COVID-19 vaccine.

It is possible that PREP Act protections may also extend to employers that offer and/or require COVID-19 vaccines. “Covered persons” include a person or entity that functions as a “program planner” of a covered countermeasure. The term “program planner” means a “[] person who supervised or administered a program with respect to the administration, dispensing, distribution, provision or use of a covered countermeasure, including an entity that established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure in accordance with [the public health emergency declaration].” A private sector employer or community group or other “person” can be a program planner when it carries out the described activities of a program planner. Importantly, in its omnibus Advisory Opinion regarding the scope of PREP Act immunity during the COVID-19 pandemic, HHS indicates its position that a person who complies with all other requirements of the PREP Act and conditions of the Secretary’s Declaration will not lose PREP Act immunity—even if the person at issue is not a covered person—if the entity or individual reasonably could have believed that the person was a covered entity. The scope of these protections remain somewhat murky, however, and many in Congress believe that PREP Act protections do not go far enough. The debate over whether additional liability protections for employers are needed and warranted is one that will continue to evolve in the months ahead.

For employees who receive the vaccine, the PREP Act provides a no-fault, speedy compensation system for individuals who have been seriously injured or died as a result of a covered countermeasure’s administration or use in response to COVID-19.

Are Waivers Permissible and/or Enforceable?

Many employers are considering asking employees to sign acknowledgments indicating that they understand the medical risks of their decisions – whether to get the vaccine or not to – and accept the risks of that decision. Such agreements have not yet been tested, and many states may find that they are not unenforceable as a matter of public policy – especially where an employer may be attempting to disclaim liability under a mandatory vaccination program. That said, employers may instead elect to provide employees with detailed disclosures and notices concerning the risks attendant to remaining unvaccinated as a way to incentivize inoculation.

Can Employers Incentivize Voluntary Vaccination Instead of Mandating It?

Yes. Given the many pitfalls that employers may face in implementing a mandatory vaccination program, they may opt for a policy that strongly encourages and incentivizes employees to get vaccinated instead. One such incentive could include paid time off from work to get and recover from the vaccination. Many employers already offer paid time off as an incentive for other more established vaccinations (although early reports suggest that COVID-19 vaccinations could lead to more discomfort than those other inoculations).

Other options for incentivizing employees to get the vaccine range from wellness benefits to gift cards and cash incentives. Employers should consult with counsel to ensure that any incentives offered are consistent with applicable law and do not carry any unintended tax implications.

This Is a Lot to Consider. What’s the Bottom Line?

Many employers will want to adopt a vaccine mandate to provide some level of protection against transmission of the virus among employees, contractors, vendors, and customers in the office, worksite, shop, or store. And as has been widely reported, efforts to include a liability shield for employers in the most recent round of stimulus legislation were unsuccessful. At the same time, issuing a vaccination mandate has its own legal risks. When deciding whether to implement a vaccine mandate, employers should evaluate, among other things:

• Whether their CBAs and state and local law permit vaccine mandates in their workplaces;
• Whether they have a process for accommodating disability and religious objections to the vaccine;
• Whether any given proposed accommodation constitutes an undue hardship, especially given that many business have already moved large segments of their workforce to remote work arrangements;
• Whether to administer the vaccine directly, contract with a third-party healthcare professional to do it, or allow employees to get their own vaccines on their own time; and
• Whether to discipline an employee who refuses to get the vaccine for a reason that is not protected by federal and/or state law.

In recent months, employers have faced a host of challenges occasioned by the advent of COVID-19. Far from being a panacea, the advent of a vaccine presents its own set of challenges and considerations. DWT attorneys remain committed to working with our clients as we navigate the next phase of this crisis.