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Vaccine Resource Center For Employers

Fisher Phillips has a number of resources to aid employers with the upcoming COVID-19 vaccine that can also be used during flu season. Check out our insights and our model policies below, and contact your FP attorney for more information.

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Vaccine Insights

Vaccine Data Bank (Templates and Forms)

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50-State Chart on Vaccines, Exemptions, And Related State Issues

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COVID-19 Vaccine FAQs

WORKPLACE SAFETY

Can we ban employees from coming to work if they refuse to get the COVID-19 vaccine once it becomes available to them?

Yes, in FAQs updated on December 16, 2020, the EEOC identified instances in which employees who are not vaccinated may be excluded from the workplace, subject to important limitations. Excluding an employee from the workplace does not mean that the employee may be automatically terminated, however. You may be required to provide reasonable accommodations to employees who are unable to take the vaccine due to certain medical or religious reasons. Since your basis for requiring the vaccine will affect how the accommodation process may unfold, you should consider their policy and rationale thoughtfully.

Specifically, you may be able to establish that getting vaccinated is a qualification standard for designated jobs – particularly if your employees are directly involved in protecting the public safety, such as those in the healthcare industry). This determination must be based upon objective medical information. Alternatively, you may be able to determine that an unvaccinated employee would pose a “direct threat” of substantial harm that cannot be eliminated or reduced by reasonable accommodation. The ADA direct threat requirement is a high standard, which must also be based on objective medical evidence and an individualized assessment. Thus, it can be challenging to establish, particularly in environments where employees have already been masking for many months. 

Based upon these determinations, you should follow pre-established procedures to respond to any accommodation requests. The Fisher Phillips Vaccine Resource Center (VRC) contains links for forms, model policies and other materials that may be helpful in dealing with these requirements.      

Finally, you must keep in mind that legislators in several states have introduced measures that may further restrict or even eliminate employers’ rights to require workers to get the vaccine. Thus, you should continue to monitor these developments. 

Once our workers prove they have been vaccinated for COVID-19, can we relax our social distancing and facemask requirements?

For several reasons, we recommend that you not relax your social distancing and facemask requirements, even after workers are vaccinated. To start, the CDC has said that experts need to understand more about the protection that COVID-19 vaccines provide before it will make the decision to stop recommending that people wear masks and avoid close contact with others to help prevent the spread of the virus that causes COVID-19. Other factors, including how many people get vaccinated and how the virus is spreading in communities, will also affect the CDC’s recommendations.  

Next, the first COVID-19 vaccines require two doses, extending the time it may take for workers to be protected from COVID-19. Pfizer’s second dose of the vaccine will take place three weeks after the first, while Moderna's second dose of the vaccine comes four weeks later. While people are expected to get some level of protection within a couple of weeks after the first shot, full protection may not happen until a couple weeks after the second shot. Also, it is still unknown whether the Pfizer and Moderna vaccines will protect people from the COVID-19 infection entirely, or just from the symptoms. That means vaccinated workers might still be able to get infected and pass the virus on in the workplace without developing outward symptoms.

Based on the above, and until additional CDC guidance emerges about the protection that COVID-19 vaccines provide under real-life conditions, it would be best to continue following COVID-19 guidelines for workers — including requiring facemasks and social distancing.

HEALTHCARE INDUSTRY ISSUES

We're in the healthcare field have access to the first does of the vaccine for our employees. What do we need to know about prioritizing the administration of the vaccine?

The CDC recently adopted a recommendation that healthcare employers sub-prioritize personnel with direct patient contact and who are unable to telework. This includes employees who handle infectious materials. You should also sub-prioritize employees working in residential care or long-term care facilities.

If you do not have enough initial doses to vaccinate everyone in these groups, you should consider vaccinating those employees who have not contracted COVID-19 in the preceding 90 days. Because reinfection is less likely in the 90 days after contracting the virus, those persons are less at risk, and thus in less need for a vaccine, during that time.

You should also consider staggering vaccinations in a particular department or unit. The vaccine may induce such symptoms as fever, headache, and myalgias. Vaccinated employees with these symptoms may be absent from work. By simultaneously vaccinating an entire unit, you may find yourself with a shortage of staff to keep your operations running.

WORKPLACE PRIVACY

If we require our employees to get a vaccine, what proof of vaccination can we require?

We currently have little on-point guidance as to what proof of vaccination employers may require from employees. If you are paying the cost of any vaccinations, it would be ideal to identify a preferred provider to administer the vaccination and send confirmation to you (with the employee’s consent). Otherwise, unless or until additional guidance emerges, it would be best to ask the employee to provide documentation from the immunization source showing the date the vaccine was administered.

Can we disclose which employees have or have not been vaccinated? 

You should not disclose a particular employee’s vaccination status. Doing so will likely violate employee privacy laws, including but not limited to the ADA.

HUMAN RESOURCES CONSIDERATIONS

What should employers consider before requiring employees to be vaccinated?

If you are considering a mandatory COVID-19 vaccine requirement, you should first ensure that you can articulate how the vaccination is job-related and consistent with business necessity. Next, ensure that policies fully inform employees of this requirement. Your policies should also spell out how employees may seek an exemption as an accommodation, based on a medical condition or a sincerely held religious belief. If an employee seeks an exemption on either or both bases, you must be prepared to engage in, and document, an interactive exchange with the employee to determine whether a reasonable accommodation would enable them to perform their essential job functions without compromising workplace safety.

Accommodations might include requiring the use of a face mask at all times while on-site, moving the employee’s workstation, temporarily reassigning the employee, approving a teleworking arrangement, or offering a leave of absence. You will not be required to provide an accommodation that poses an undue hardship on the company. However, the “undue hardship” standard varies depending on the basis of the request. State and local laws must also be considered. Finally, you must also implement safeguards to ensure the privacy of employee medical information.

Should we require our employees to get a vaccine?

Many employers choose to encourage rather than require flu shots, even though the CDC has said it is more important than ever to receive the flu vaccine this year. Under such a policy, employees who do not get the flu shot will typically be required to wear face masks at all times while on premises or near coworkers, customers or patients. We anticipate that many employers will likely encourage, but not require, the COVID-19 vaccine, if and when it becomes available. Among other considerations, employers will have to evaluate whether a “masked” employee represents a significantly higher threat of harm than a vaccinated employee.

This choice also represents a potentially enormous employee relations issue, which may be largely dependent on the nature of your business. Even after a vaccine gets FDA approval and employers have the right to require its use, a substantial segment of the workforce may still be skeptical or resist receiving it for other reasons. Depending on the circumstances, resistance could invoke employees’ Section 7 rights under the National Labor Relations Act. If nothing else, unanticipated employee pushback can create substantial disruptions and unhappiness. This simply underscores the importance of thinking through the impact of requiring vaccinations in each setting, including analysis of job-relatedness, business necessity, and presenting that information to employees.   

At a minimum, you should review and update your inoculation policies now, especially considering the CDC guidance regarding the importance of flu shots and the anticipated COVID-19 vaccine.

If we require our employees to get a vaccine, what policies or procedures do we need to have in place?

If you make any vaccine mandatory, you should ensure that your policies fully inform employee of how to seek an exception as an accommodation. You must also be prepared with a full accommodation procedure. (This should already be in place, but if it is not, now is a great time to implement one.) 

You should also have policies and procedures in place addressing whether time spent getting a vaccine will be treated as “hours worked.” Lastly, it remains important to ensure your policies encourage sick workers to stay home until they meet applicable return to work standards without fear of reprisal, particularly if they have a fever.

How can we ensure the confidentiality of employee medical information with regard to a vaccine?

The ADA requires you to store employee medical information separately from employee personnel files. You may store COVID-19 and/or vaccine-related medical information in existing medical files.

Can we provide cash or other incentive to encourage employees to be vaccinated?

Yes, but with limitations. Many employers are considering the option of encouraging employee vaccinations through the use of incentives. If you choose this option, you will need to consider the rules applicable to wellness programs and IRS requirements. Although a simple offer of cash in exchange for proof of vaccination may not seem like an employer-sponsored wellness program, the rules apply just the same. Accordingly, such a program must take into account requirements under the Americans with Disabilities Act, as interpreted by the EEOC, and potentially the wellness requirements under HIPAA. For example, an employer offering incentives for vaccines performed onsite is likely subject to both the ADA and HIPAA wellness rules as a group health plan. In lieu of cash payments, you may be considering providing additional contributions to HSA or other account-based plans of employees. These types of incentives may also be allowed within the wellness program rules, but you will need to consider the special tax and non-discrimination rules under the Internal Revenue Code when designing the program.    

Other considerations include compliance with EEOC guidance regarding employees whose medical condition (or sincerely held religious beliefs or practices) would prevent them from taking the vaccination, reasonable alternative standards for earning rewards under the HIPAA rules, financial limitations on incentives, notice requirements under the ADA and HIPAA, and tax consequences of cash payments or gift cards. Consult your Fisher Phillips attorney for assistance in designing a compliant incentive program for vaccines.

WAGE AND HOUR ISSUES

Do we have to pay for our employees to get a vaccine?

The Fair Labor Standards Act requires that employers reimburse employees for expenses incurred on his employer’s behalf, or where the employee is required to spend money for the convenience of their employer, to the extent that failing to reimburse would, effectively, cut into the employee’s FLSA-protected wages. State or local wage and hour law may also create similar, or even higher, obligations. Whether employers will be required to cover some or all of the costs or time associated with getting the COVID-19 vaccine will depend on the circumstances specific to the employee. If you require the vaccine on the basis that it is job-related and consistent with business necessity, then we recommend that you include the time spent getting the vaccine as hours worked, and cover the cost of the vaccine itself, to avoid a pseudo-deduction to FLSA-protected wages or to the extent necessary to comply with any other requirements applicable in the jurisdiction. If you have a voluntary vaccination policy and the vaccine is not arguably job-related and consistent with business necessity, you will likely not have to take these steps, but might consider doing so in some circumstances. We recommend consulting with your employment lawyer in such situations both to discuss your obligations and any implications stemming from your generosity.

LABOR ISSUES

We have a unionized work force. Is there anything else we need to consider with respect to our vaccine policy?

If you operate your worksite under a collective bargaining agreement, you should consult the management rights, health and safety, and any other applicable provisions within such agreements that may apply, along with any analogous past practices in effect. Before moving forward with implementation of any changes in that regard, you should also furnish advance notice to the incumbent union(s), and be prepared to bargain over the effects of such changes upon request. Check with your labor counsel for specific guidance.

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EVENTS

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FP VACCINE SUBCOMMITTEE MEMBERS

Phillip Bauknight
Alex Castro
Kelsey Cully
Patrick Dennison
Chantell Foley
Alvaro Hasani
Kevin Hess
Michael Holt
Megan Janes
Todd Logsdon
Howard Mavity
Richard Meneghello
Chris Peterson 
Andria Ryan 
Samantha Saltzman
Kristin Smith
Kevin Troutman 
Miranda Watkins 
Kristin White
Arthur Wolfson 

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