Ask the Experts: COVID-19 Vaccinations
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By: Jennifer Muse | Honigman
Q: COVID-19 vaccines are here! Should we be mandating vaccinations for all of our employees? A: Vaccines are here, but widespread availability is not—so now is the perfect time for employers to think through whether they should require employees to get the COVID-19 vaccine. Here are the four most frequently asked questions: 1. As part of an employer’s duty to provide a safe workplace, are employers required to have in-person employees vaccinate? No, employees are not required to be vaccinated currently, and employers are not required to make employees vaccinate at this time. While employers are required to provide a safe and health workplace free from recognized hazards, the Occupational Health and Safety Administration (OSHA) issued new guidelines at the end of January, indicating that employers can meet their duty through a COVID-19 prevention program. OSHA has indicated that employers should make the vaccine available at no cost to employees, however. |
2. Can employers require employees to get the COVID-19 vaccine?
Yes, employers can require employees to get the COVID-19 vaccine, provided that employers consider accommodations for employees who are prevented from getting the vaccine due to a disability or a sincerely held religious belief. In determining whether there are reasonable accommodations to an employer’s vaccination mandate, the employer should consider whether a different accommodation causes an undue hardship and whether the unvaccinated individual causes a direct threat to the health or safety of the workplace. A “direct threat” is defined as a “significant risk of substantial harm to the health or safety of the individual or others that that cannot be eliminated or reduced by reasonable accommodation.” While employers should consider accommodation requests carefully, potential accommodations may include extending remote work or making certain personal protective equipment (PPE) mandatory for workers. If an employer does make the vaccine mandatory, time spent obtaining the vaccine is likely compensable and should be paid as hours worked (and included in overtime calculations). Employers should have a plan in place for what happens if an employee becomes ill or has a reaction to the vaccination, as the employee will likely require leave, which could qualify under paid sick leave laws or even the Family and Medical Leave Act, for severe reactions.
If an employer has a union in the workplace, however, vaccination policies are likely a mandatory subject of bargaining, so review the collective bargaining agreement (CBA) and think about effects bargaining before implementing the policy.
3. If we mandate vaccinations, are there any liability risks?
Yes, so employers should think very carefully about mandating the vaccine. An adverse reaction could lead to a workers’ compensation claim, or even an employee trying to avoid the workers’ compensation exclusive remedy rule. If an employer is controlling the vaccination roll-out, an employer asking the screening health questions for the vaccine could qualify as a medical examination under the Americans with Disabilities Act (ADA) or a prohibited inquiry under the Genetic Information Nondiscrimination Act (GINA). Plus any data on employee health triggers the ADA confidentiality obligations. An employer who mandates vaccinations may want to use a third-party administrator to avoid these ADA and GINA issues.
4. If mandatory vaccinations bring so many issues, what’s the best practice?
Ultimately, it is best practice for employers to encourage vaccination, rather than mandate it. Employers are experimenting with different incentive programs, but any incentive offered should be reviewed with counsel to ensure compliance with various benefits programs and laws.
Yes, employers can require employees to get the COVID-19 vaccine, provided that employers consider accommodations for employees who are prevented from getting the vaccine due to a disability or a sincerely held religious belief. In determining whether there are reasonable accommodations to an employer’s vaccination mandate, the employer should consider whether a different accommodation causes an undue hardship and whether the unvaccinated individual causes a direct threat to the health or safety of the workplace. A “direct threat” is defined as a “significant risk of substantial harm to the health or safety of the individual or others that that cannot be eliminated or reduced by reasonable accommodation.” While employers should consider accommodation requests carefully, potential accommodations may include extending remote work or making certain personal protective equipment (PPE) mandatory for workers. If an employer does make the vaccine mandatory, time spent obtaining the vaccine is likely compensable and should be paid as hours worked (and included in overtime calculations). Employers should have a plan in place for what happens if an employee becomes ill or has a reaction to the vaccination, as the employee will likely require leave, which could qualify under paid sick leave laws or even the Family and Medical Leave Act, for severe reactions.
If an employer has a union in the workplace, however, vaccination policies are likely a mandatory subject of bargaining, so review the collective bargaining agreement (CBA) and think about effects bargaining before implementing the policy.
3. If we mandate vaccinations, are there any liability risks?
Yes, so employers should think very carefully about mandating the vaccine. An adverse reaction could lead to a workers’ compensation claim, or even an employee trying to avoid the workers’ compensation exclusive remedy rule. If an employer is controlling the vaccination roll-out, an employer asking the screening health questions for the vaccine could qualify as a medical examination under the Americans with Disabilities Act (ADA) or a prohibited inquiry under the Genetic Information Nondiscrimination Act (GINA). Plus any data on employee health triggers the ADA confidentiality obligations. An employer who mandates vaccinations may want to use a third-party administrator to avoid these ADA and GINA issues.
4. If mandatory vaccinations bring so many issues, what’s the best practice?
Ultimately, it is best practice for employers to encourage vaccination, rather than mandate it. Employers are experimenting with different incentive programs, but any incentive offered should be reviewed with counsel to ensure compliance with various benefits programs and laws.
No matter what you decide about employee vaccinations, don’t throw away that pandemic preparedness and response plan! Pre-vaccination safety measures remain the best practice for all employers. Keep your eye on federal, state and local updates, and make sure that you continue to update your plan to reflect the latest requirements and guidance.
