Now that COVID-19 vaccines are becoming more widely available, employers have questions as to whether they can (or should) require that employees obtain a COVID-19 vaccine. Summarized below are common questions and answers, based on current guidance:
1. Can an employer require employees to obtain a COVID-19 vaccine as a condition of employment?
Generally, yes. There are few employers mandating vaccines at this point, as most are choosing to encourage and incentivize employees to become vaccinated. Prior to implementing a vaccine requirement, keep the following in mind: (a) consider state and local law, as several states have proposed bills to prohibit or otherwise restrict employers from mandating vaccination (a bill advanced in the Iowa Senate in February 2021 proposed to forbid Iowa employers from requiring employees to be vaccinated; this bill died on the vine); (b) consider mandating vaccinations only for positions that frequently come into contact with the public based on the position's job duties (e.g., positions identified through OSHA's hazard assessment as "high exposure risk"); (c) if an employee objects to vaccination on the basis of disability or a religious belief, an employer must provide a reasonable accommodation for the religious belief or disability. In the context of a religious belief, an employer must provide a reasonable accommodation unless it would pose an undue hardship. In the context of a disability, an employer must show that an unvaccinated employee in the workplace poses a direct threat "due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation." See EEOC Guidance, here. Such accommodations could be allowing the employee to perform the position remotely or temporarily restructuring the position. Employers must engage in the interactive process with employees to identify possible accommodations; (d) if an employer wishes to provide the vaccination onsite, proceed cautiously. The EEOC takes the position that while the vaccination itself is not a medical examination, pre-screening vaccination questions may implicate the ADA's provisions on disability-related inquiries. If the employer administers the vaccine, the employer must show that such questions are job-related and consistent with business necessity. If an employer requires vaccination and contracts with a third-party provider (such as a pharmacy) to offer the vaccine onsite, the employer must meet the "job related and consistent with business necessity" standard. If an employer encourages, but does not require, vaccination, or requires that the employee obtain the vaccination from a third-party (with whom the employer has no contract), this standard does not apply to the pre-vaccination medical screening questions.
2. If an employer requires vaccines and an employee has an adverse reaction to the vaccine, is the employer liable?
If an employer requires a COVID-19 vaccine and an employee has an adverse reaction, the claim could be covered under the employer's workers' compensation policy as a "job-related injury." For employers that encourage (vs. mandate) vaccines, workers' compensation coverage for vaccine-related injuries is less clear. If the employer encourages vaccination and hosts a vaccine clinic onsite, that could increase the likelihood of a successful claim.
3. Can an employer require that employees show proof of vaccination?
Yes, whether an employer requires vaccination or encourages it through offering employee incentives, an employer can request proof of vaccination. The EEOC has confirmed that simply asking for proof of receipt of a COVID-19 vaccine is not likely to elicit information about a disability and thus, is not a disability-related inquiry. However, the EEOC recommends that if an employer is requesting for proof of vaccination from the employee's health care provider or pharmacy, the employer warn the employee to avoid providing any medical information as part of the proof.
4. Can employers treat vaccinated and unvaccinated employees differently in terms of COVID-19 workplace policies?
OSHA's current guidance cautions employers against treating vaccinated and unvaccinated employees differently in terms of workplace policies such as social distancing, mask wearing, etc. The CDC has updated its guidance to eliminate the quarantine and testing requirement for fully-vaccinated employees who have been exposed to a COVID-19 positive person, so long as the employee remains asymptomatic. However, that same guidance instructs that employees must follow health safety protocols set by their employer and both the CDC and OSHA recommend that vaccinated employees continue following their employer's COVID-19 health safety measures since public health authorities are still gathering information about the effectiveness of vaccines. Consequently, while it is acceptable to treat vaccinated and unvaccinated employees differently in terms of requirements surrounding quarantining and testing in the event of a COVID-19 exposure, employers should impose other COVID-19 policies uniformly without regard to vaccinated status in order to avoid claims of differential treatment based on disability or religion as to those employees who cannot obtain a vaccine due to a disability or religious belief.
5. Can an employer offer incentives to encourage employees to become vaccinated?
Yes. Most employers are choosing to encourage and/or incentivize employees to become vaccinated in lieu of requiring the vaccine. Incentives should be designed carefully to avoid running afoul of anti-discrimination laws. The EEOC has not yet issued guidance on the extent to which employers can offer incentives to their employees to vaccinate, and further, what qualifies as a permissive incentive. Until the EEOC does so, employers should design incentives cautiously. Many employers are offering paid time off to employees to obtain and recover from the vaccine. For employers choosing to continue FFCRA leave under ARPA, an employer can claim tax credits for leave offered for that purpose (see The American Rescue Plan Act of 2021 Gives Eligible Employers Another Shot at Optional Employee Leave in Exchange for Tax Credits). In addition, employers can consider taking measures to encourage and educate their employee population about the benefits of becoming vaccinated. The CDC Interim Public Health Recommendations (released on April 27, 2021) relaxing mask-wearing outdoors for people who have been fully vaccinated is one such benefit.
As these issues continue to develop and evolve, we will continue to monitor the changes and keep our clients informed. Be on the lookout for further communications from the Bradley & Riley PC team. For more information, contact Kim Blankenship at email@example.com.