Employer COVID-19 Vaccine Considerations

Employer COVID-19 Vaccine Considerations

Employers want to keep COVID-19 out of the workplace. As vaccines start to become available to employees, employers must plan their strategy for how to handle vaccinations.

The Q&As below provide guidance for employers around the COVID-19 vaccine. Before taking any action, employers should consult with legal counsel.

Can employers mandate the COVID-19 vaccine?

Yes. Recent Equal Employment Opportunity Commission (EEOC) guidance confirms that employers can mandate vaccines as a condition of employment, subject to a few exemptions. Employers must allow exemptions for:

The Outlook for Health Care: 2021 and Beyond
  • Disability-related requests. EEOC guidance explains that giving a vaccination is not a medical examination under the Americans with Disabilities Act (ADA) because the vaccination process does not seek information about a person’s current health or impairments. Employers must proceed cautiously as pre-vaccination screening questionnaires may implicate ADA’s prohibition on disability-related inquiries and Genetic Information Nondiscrimination Act’s (GINA) prohibition on genetic inquiries. Employers must be prepared to recognize accommodation requests and refer employees to those responsible for engaging in the interactive process.
  • Religious-based objections. Under Title VII, employers may have to provide a reasonable accommodation where an employee’s sincerely held religious belief, practice or observance prevents the employee from becoming vaccinated if doing so does not impose more than a de minimi, or relatively insignificant, cost. Employers should assume requests for religious accommodations are based on sincerely held beliefs, but they can ask for additional information if they have reason to question the sincerity of the belief.

If the employee’s request falls under one of these exemptions, the employer must offer a reasonable accommodation, such as working remotely or job reassignment, as long as there is no undue hardship to the employer.

Another legal consideration for employers in deciding whether mandating vaccines is permissible depends on whether there are any state-specific laws regarding vaccine mandates. States have varying standards for mandated vaccines, which could be more restrictive than federal law, so employers should determine whether any state-specific laws limit their ability to mandate the vaccines.

OK, but are employers mandating the COVID-19 vaccine?

The consensus among employers so far is to strongly encourage employees to get vaccinated but not require it. A survey by i4cp finds that only 5% of employers say they will require employees to get the vaccine39% will not mandate it, and 41% are still deciding.

What are some reasons not to mandate the COVID-19 vaccine?

Here are some of the reasons that most employers don’t plan to require COVID-19 vaccination.

  • The available vaccines are not fully Food and Drug Administration (FDA)-approved. FDA emergency use authorization (EUA) guidance says that recipients of EUA products must be informed about the right of refusal.
    • By waiting for full FDA approval before mandating vaccination, employers can decrease risks associated with employees’ fears about the vaccines’ emergency status.
  • General concerns about employees’ legal rights
  • Backlash from workers and harm to morale
  • Respect for the views of those who lack confidence in the vaccine
  • Mandates are not in line with company culture or “culture of trust.”
  • Unwanted press attention

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How can employers encourage vaccination?

Some employers may not want to mandate vaccinations but instead may encourage employees to get vaccinated by offering a perk or incentive.

Possible perks and incentives include:

  • Vaccination reimbursement costs. Reimbursing employees for the cost of receiving the vaccine is allowed if the reimbursement is consistent amongst all employees. Employers should consult their health plan and providers to determine whether the cost of a vaccine will be covered under the terms of the plan.
  • ADA and GINA are developing guidelines on employer-sponsored wellness programs and the level of wellness incentives that can be offered. The proposed rules target participation-only wellness programs, limiting incentives offered in connection with such programs to a “de minimis” standard. Examples of de minimis incentives generally include items such as a water bottle or a gift card of modest value. Employers should consult with legal counsel for questions about what is considered a de minimis incentive.
  • Additional paid time off to recover from the vaccination. To avoid being seen as coercion, the benefit must not be unreasonably large.
  • Cash or extra pay. Dollar General recently announced it will offer hourly frontline employees who get the vaccine a one-time payment equivalent to four hours of pay.

Employers should consult with legal counsel to ensure that any incentives offered are consistent with applicable law and do not carry any unintended tax implications. 

Bottom Line

Before deciding to mandate vaccines, employers should consider:

  • The process for accommodating disability and religious objections to vaccinations.
  • Whether proposed accommodations for those refusing the vaccine constitutes an undue hardship.
  • Whether state laws permit vaccine mandates.
  • If the collective bargaining agreement (CBA) allows or prohibits workplace vaccine mandates.
  • Who will administer the vaccine – a third party or the employer?
  • Whether the health plan will cover the cost of the shots.
  • Whether to penalize an employee who refuses to get the vaccine if the employee is not protected under the law.
  • Whether workplace morale will be harmed by the mandate.

The market trend is to encourage, but not require, the COVID-19 vaccine—for a variety of reasons. Employers outside the health care industry do not know when their employees will have a turn for the vaccine. A lot of employers are still deciding what to do or taking a wait-and-see approach.

Additional Resources:

Amanda Wilke, CEBS
Information/Research Specialist at the International Foundation

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