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.
- Vaccine Insights
- Vaccine Data Bank (Templates and Forms)
- 50-State Chart On Vaccines, Exemptions, And Related State Issues
- COVID-19 Vaccine FAQs
- FP Vaccine Subcommittee Members
- Is it The Flu Or COVID-19? 4 Key Steps To Address New Workplace Challenges At The Start Of Flu Season, September 28, 2020
- Flu Season And Possible COVID-19 Vaccine Will Shine A Spotlight On Workplace Vaccination Policies, August 18, 2020
- Model Mandatory Vaccine Policy
- Model Non-Mandatory Vaccine Policy
- Accommodation Procedure
- Request For Medical Exemption/Accommodation Related To Vaccine
- Request For Religious Exemption/Accommodation Related To Vaccine
Can we ban employees from coming to work if they refuse to get the COVID-19 vaccine, if and when an approved vaccine becomes available?
Unless and until a vaccine is approved for use and the EEOC provides more guidance, we currently refer to the Commission’s guidance regarding similar issues. In guidance issued on September 8, 2020, the EEOC advised employers to encourage, but not require employees to get flu vaccines. The EEOC further said that if you require employees to obtain a flu shot, they may be entitled to an accommodation based on an ADA-disability that prevents them from taking the vaccine. An employee may also be entitled to an accommodation based on a sincerely held religious belief or practice. In either case, the EEOC said that employers must evaluate and respond to such requests on an individualized basis.
Based upon this guidance, you will likely be able to require employees to receive the COVID-19 vaccine once a reliable one is available, subject to the consideration of accommodation requests, as described above. In all cases, vaccine requirements should be job-related and consistent with business necessity. State or local law may affect your right to require vaccinations.
As further explained below, you should carefully consider your specific circumstances before deciding whether to require vaccinations and whether to apply the requirement to some or all employees.
You should note that law does not permit you to unilaterally ban employees whose underlying condition may make them especially vulnerable to COVID-19 unless the employee’s disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation. On the other hand, you must consider requests from employees with particular underlying vulnerability to COVID-19.
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 employees 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.
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.
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.
- Sticking Points: What Employers Need To Know About Flu Shots And COVID-19 Vaccines, October 13, 2020