On Thursday, April 15, the International Foundation presented a webcast on legal considerations for employers regarding employee vaccinations. Diana Bardes, partner at Mooney, Green, Saindon, Murphy & Welch, P.C., presented an update from the January 27 webcast, COVID-19 Vaccinations and Your Workforce, which was recommended for more background.
Ms. Bardes described the top questions employers have and outlined considerations, including observations on the likelihood of employers exploring different solutions. Of course, employers should seek their own legal counsel when making decisions.
Can I Require My Employees to Get Vaccinated?
Yes, says the Equal Employment Opportunity Commission (EEOC), with exemptions. However, not many employers have moved in this direction. Earlier this year, employers simply couldn’t head down this path because of vaccine access issues. But now, nearly everyone is eligible, and the vaccine supply is increasing. Ultimately, employers are finding litigation risk associated with a mandatory program. Employers really need to make sure to have the proper procedures in play to implement a mandatory program.
But You Need to Consider ADA
The vaccination is not considered a medical exam, and employers can ask for proof of vaccination. But employers should be careful about asking follow-up questions as to why someone does not have a vaccination. Doing so could be a violation of the Americans with Disabilities Act (ADA), as it could elicit information about a disability. Be especially cautious if you live in a state that has taken action against proof of vaccination, and make sure to have a deep understanding of how state-specific laws affect you.
Employees can claim an exemption from mandatory vaccination on the basis of the ADA. Some individuals may have a medical reason that prevents them from getting a vaccine, including severe allergies to a component of the vaccine. Those with conditions for which no data is currently available regarding safety of vaccination, such as HIV, weakened immune systems or autoimmune conditions, fall into a grey area. With over 100 million vaccinated, that data is finally being compiled, but it’s not yet available. The current situation stretches the potential for litigation. You may be within your rights to require the vaccine because the CDC does not prohibit it, but you will likely have a great amount of pushback from employees with these conditions.
If an Employee Claims a Disability Exemption
If your employee has claimed a disability exemption and refused to take the vaccine, you need to evaluate the accommodation request. From there, you need to determine whether allowing the unvaccinated employee to come back to work will prove a direct threat to the workplace. A direct threat means a significant risk of or substantial harm that cannot be eliminated or reduced by reasonable accommodation. Steps in assessing this include calculating how many employees you have vaccinated out of total employees, whether masks or social distancing can make a difference and whether remote work is a possibility. After looking at these factors, you need to make a decision. If there is no direct threat to your workplace, then you don’t need to require a vaccination. If there is a direct threat and a reasonable accommodation is available, then you need to make that accommodation. If there’s a direct threat and no possible accommodation can be made, only then is it lawful for you to exclude that person from your workplace. Here, termination is your last resort. If you terminate that person on the basis of not complying with your mandatory vaccination program and they have a disability exemption, you are potentially looking at legal risks.
Some people may object to being vaccinated as part of religious beliefs, which includes organized religion and informal beliefs. For example, a case associated with the flu vaccine found that practicing veganism can exclude someone from having to get a flu shot, as they used animal products in the test stage.
If your employee claims religious exemption, you can
- Provide an accommodation
- Deny the exemption request on the basis that it is for non-religious reasons. This is the riskiest option in terms of liability. It’s essentially saying, “I don’t buy that this has to do with your religion,” and it puts the employer in a subjective spot.
- Deny the request because doing so would otherwise put an undue hardship on your business. This would apply if the requested accommodation would cost more than a trivial cost of operations. For example, if the employer has to create a separate office, that would be considered non-trivial.
Can My Organization Offer Incentives to Encourage Vaccination?
Very few settings aside from hospitals and nursing homes have made vaccinations mandatory. These settings are dealing with patients or residents who are at higher risk because of a close tie to safety. Other employers are focusing on encouraging and incentivizing instead. There are some arguments against incentivizing, including the thought that doing so reinforces skepticism. Others feel employer incentives may not acknowledge the time it takes to get the vaccination. The specific legal guidance of incentive programs is lacking.
ADA Considerations With Incentives
Applying guidance used for wellness programs, employers cannot coerce employees to participate. Only optional programs are permitted. If the benefit is too great, then it could be coercive. For those who are prohibited from vaccination as a result of disability or religion, there could be a claim that an incentive that is more than de minimus is discriminatory. Low-stakes incentives are best—a couple hours of work, a day of PTO, a small monetary incentive.
Employer Administration of Vaccine
There have not been many employers who have administered the vaccine. Amazon’s January announcement of offering onsite vaccinations is just starting to move forward in a few states. Until the vaccination supply significantly increases, it’s not much of a factor.
Learn More About COVID-19 Vaccines and the Workforce
The legalities of mandated workplace vaccinations are complex, and as always, you should consult with your counsel before proceeding. For more information on vaccination programs, incentives and considerations, International Foundation members can watch the webcasts: COVID-19 Vaccines and Your Workforce—Follow-Up or COVID-19 Vaccines and Your Workforce or contact the Foundation Information Center.
Stacy Van Alstyne
Communications Director at the International Foundation
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