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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.

Table of Contents

General Knowledge

Employee Incentives

Workplace Safety

Healthcare Industry

Labor Relations

Archived 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

EMPLOYEE INCENTIVE ISSUES

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

Yes, but with limitations – and with an understanding of the risks involved depending on the incentive system you choose. 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, and we recommend you review our detailed Alert discussing the risks involved with various incentive systems.

What are other employers doing with regard to incentives?

According to an FP Flash Survey tallying information from 700 employers, close to half of all respondents (43%) are unsure about whether to offer some form of incentive to those workers who receive the vaccine, many commenting that their hesitancy is fueled by the current legal uncertainty. Of those employers considering incentives, the two most popular categories include cash/gifts (38%) and paid time off (30%). Meanwhile, 5% of employers believe it is incentive enough for them to provide onsite vaccinations to their workforce, and another 3% simply plan on covering any costs associated with the vaccine. A quarter of respondents (25%) are currently unsure what they will provide when it comes to an incentive. For more information, check out the full results of our survey.

Will the EEOC provide employers with guidance regarding the legal permissibility of providing incentives for receiving the COVID-19 vaccine?

The EEOC has not yet issued any such guidance, but a group of dozens of employer advocacy associations recently requested the agency provide such assistance. The EEOC responded by saying the agency is “considering the issue carefully and will provide additional guidance as necessary.”

Can we completely avoid dealing with the ADA’s limitations on making medical inquiries to current employees by simply contracting the vaccination process out to a third party?

As a practical matter, many employers will still likely have to deal with ADA regarding medical inquiries and the confidentiality of such information, even if pre-vaccine screening and administration are contracted out. This issue can quickly become complex, even when narrowed to context of vaccine administration. Specifically, the ADA requires that medical inquiries or examinations of current employees must be job-related and consistent with business necessity. (The severity of the pandemic currently allows employers to conduct COVID-19 symptom screenings or require testing without violating this rule.) As it pertains to vaccine administration, the EEOC issued guidance on December 16, 2020 (and which does not mention incentives) recognizing that whoever administers the vaccine will need to ask pre-screening medical questions that could require an employee to reveal disability-related information. The guidance relieves the employer of having to fulfill the job-related/business necessity requirement if a third party who is not contracted with the employer administers the vaccine and thus poses the questions. If, however, an employee cannot take the vaccine for medical reasons, the employer will have to elicit information that may be disability-related and safeguard the responses. A similar scenario will apply if an employee cannot qualify for the incentive because of a disability – the employer will need to obtain and safeguard the individual’s medical information in order to consider a reasonable accommodation. In short, while leaving vaccine administration to a third party can indeed relieve employers of some ADA concerns on the front end of the process, those issues will still arise if and when an employee cannot be vaccinated for a medical reason.   

MANDATING THE VACCINE

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 your applicable policies 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 preestablished 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. 

Are other businesses mandating the COVID-19 vaccine with their workforces?

Yes – but not many. According to an FP Flash Survey tallying information from 700 employers, only 9% of respondents said they were considering requiring employees to take the vaccine as a condition of their employment, while 64% said they were not thinking about mandating it. Meanwhile, 27% said they were unsure what they would do.

Of those considering a mandate, agricultural and food production employers are far and away the likeliest to require it (18%). Employers in the construction (13%), healthcare (12%), hospitality (11%), and retail (10%) industries also rank near the top. Least likely to mandate the vaccine? Government employers (4%), and those in the finance and insurance (5%), professional services (5%), automotive (6%), manufacturing (7%), and education (9%) industries. For more information, check out the full results of our survey.

For more information on the legality of mandating COVID-19 vaccinations and practical steps to consider regarding the process, we recommend you check out our recent alert: Top 7 Things You Need To Know As EEOC Says Employers May Mandate COVID-19 Vaccines.

What should we consider before requiring employees to be vaccinated?

If you are considering a mandatory COVID-19 vaccine requirement, you should evaluate both legal and practical issues. From a legal standpoint, first ensure that you can articulate how the vaccination is job-related and consistent with business necessity. Although not critical to your initial decision, this analysis will be required when it comes to enforcing a vaccine requirement, especially when some employees inevitably request exemptions. Next, ensure that policies fully inform employees of the vaccine 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. You must also implement safeguards to ensure the privacy of employee medical information. Finally, you must also take into consideration union issues if you operate in a unionized environment, and recommend you read our full alert on the subject here.

Many additional issues are important from both a practical and employee relations standpoint.  The following FAQ highlights some of them.

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. Similarly, we anticipate that many employers will continue to encourage, but not require, the COVID-19 vaccine when it becomes available to their workforce.

This choice also represents a potentially enormous employee relations issue, which may be largely dependent on the nature of your business. A substantial segment of the workforce may still be skeptical or resist receiving it for other reasons. Many who say that would eventually take the vaccine are currently taking a “wait and see” attitude. As the vaccine rollout continues, it is increasingly clear that employees are skeptical of information from many sources, while they tend to place great confidence in their healthcare providers. Providing objective information that employees trust can go a long way toward increasing the percentage of them who decided to get vaccinated.   

Depending on the circumstances, resistance to a vaccine requirement could invoke employees’ Section 7 rights under the National Labor Relations Act. If nothing else, employee pushback can create substantial workplace 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 policies now in anticipation of increasing availability of the 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 non-exempt employees spend getting a vaccine will be treated as “hours worked.” If the vaccine is required, this time should certainly be paid. If the vaccine is not required, the time would not necessarily have to be paid, though treating it as time worked would likely increase the employee vaccination rate. 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.

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

You should ask the employee to provide documentation from the immunization source showing the dates the vaccine was administered. To avoid potential GINA and ADA issues related to this process, you should affirmatively inform employees that they do not need any additional medical or family history information. These same parameters would apply when collecting proof of vaccination for purposes of an incentive or another purpose when vaccines are not mandatory. This documentation should be treated as a confidential medical record.

WORKPLACE SAFETY

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

No. For several reasons, we recommend that you do 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.

In addition, OSHA issued guidance on January 29, 2021 to help employers mitigate and prevent the spread of COVID-19 in the workforce. Critically, this guidance provides that employers should not distinguish between vaccinated and non-vaccinated employees. This guidance provides that vaccinated employees must continue to follow protective safety measures such as wearing face coverings and remaining physically distant because there is no evidence that COVID-19 presents the transmission of virus from person to person. Specifically, OSHA’s guidance states that “it is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.”

What else should we take into consideration when it comes to workplace safety and vaccines?

When your workers are getting scheduled for their vaccination appointments, you should consider staggering them in a particular department or unit. The vaccine may induce such symptoms as fever, headache, and myalgias, and employees with these symptoms may need to be absent from work. By simultaneously vaccinating an entire business unit, you may find yourself with a shortage of staff to keep your operations running.

FRONTLINE AND ESSENTIAL INDUSTRY ISSUES

We either have received or anticipate soon receiving access to early doses of the vaccine for our employees given that our state has deemed our business an essential or frontline business. What do we need to know about prioritizing the administration of the vaccine?

If you are in the healthcare field, the CDC published 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.

For non-healthcare employers, you should follow a similar strategy. You should prioritize those workers who are required to work in close contact with other employees, the general public, and with other third parties. You should provide them preference over those who can continue to perform remote work for the time being.

How do we ensure our business is categorized as an essential business such that we can receive priority access to the vaccine?

This is largely a decision that will be governed by the states in which you do business. In general, many states have adopted the federal definition of “essential businesses” under the Cybersecurity and Infrastructure Security Agency (CISA) Guidance on Essential Critical Infrastructure Workforce, but states may adopt their own definitions depending on local considerations. We recommend you consult with your Fisher Phillips attorney for clarification, or connect with local or regional trade or industry associations for more details.

WORKPLACE PRIVACY

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.

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.

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, 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 directly job-related and consistent with business necessity, you will likely not have to take these steps, but should 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 such scenarios.

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, and we recommend you read our recent Alert summarizing the realities of vaccine policies in a unionized environment.

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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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