By Ali Tozier
With access to COVID-19 vaccinations becoming more widely available, employers should consider what workplace policies they can employ to ensure a safe work environment in the months to come.
The first decision many employers will make is whether or not to mandate their employees be vaccinated. While the Equal Employment Opportunity Commission (EEOC) is not currently prohibiting employers from implementing a mandatory vaccine policy, many employers are opting to allow their employees to voluntarily choose whether or not to get vaccinated. There are benefits to the voluntary approach, including less risk of violating employee rights.
If employers take the route of simply encouraging employees to get the vaccine when it becomes available to them (remember, not all employees will have access to the vaccine at the same time), rather than mandating it, the employer may find that most of their employees are getting vaccinated on their own accord. While employers must take reasonable steps to ensure a safe workplace under the Occupational Safety and Health Administration (OSHA), there is no bright line rule for employers to follow on vaccines. Individualized assessments are necessary, and it is important to follow guidance of the CDC.
Questions to consider when deciding whether or not to mandate the vaccine include:
- How many employees are working remotely?
- How many employees have to be in close proximity with each other in the workplace?
- How many already have been vaccinated? (The EEOC allows employers to ask employees if they have been vaccinated)
- How many plan to get vaccinated when given the opportunity? (Many are either strongly in favor of getting the vaccine or strongly against the idea.)
- Is it hard to eliminate the risk of spreading COVID with social distancing, mask-wearing and other requirements already in place in your workplace?
The vaccine is not a “medical examination” under the ADA
The EEOC opined that the vaccine is not a “medical examination” under the American with Disabilities Act (ADA). This means an employer can mandate the vaccine, encourage employees to get it, or ask if they have or will receive it without needing to take additional steps to show job relatedness or consistency with business necessity.
However, employers still must comply with applicable laws, including but not limited to the ADA, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964 (religious accommodations), and the non-retaliation provision of OSHA.
Employers also should be cautious when it comes to learning health-related information from their employees, which may arise from pre-screening questions of vaccine administration or from asking why an employee did not get the vaccine. The employer may need to show that receiving such information was job related and consistent with business necessity, which could prove difficult. Any health-related information, including information about if an employee was vaccinated or not, must be treated as confidential and kept in secure files, separate from regular employee files.
Employees must remember the laws operating to protect employee rights still exist, and employers must abide by them. Employees can object to getting a vaccine in the face of an employer’s mandate and be protected from termination or other adverse actions.
Due to the overlapping and sometimes conflicting laws, employers are encouraged to consult with employment counsel on vaccination policies, particularly if they are considering a vaccine mandate.
Employers can offer incentives for getting the vaccine. However, any incentives should be “de minimus” (example: a few days off work), and employers should offer employees who cannot get the vaccine due to a protected reason (like a disability) a similar benefit.
Keep your employees top of mind throughout this process
Employees have been through a lot since this time last year. With that in mind, employers also should consider employee morale and how they would react to being mandated to take a vaccine that is only approved under an Emergency Use Authorization.
Remember, this is uncharted territory and everyone is navigating new waters together. Don’t hesitate to reach out to experienced employment counsel for advice in those navigation efforts.