March 12, 2021 Creating a COVID-19 Vaccination Policy - Worth a Shot?

Since the onset of the COVID-19 pandemic, employers have had to make sweeping changes to the workplace, navigate complex health and safety rules, and make one tough decision after the other—and, the pressure remains on.  The next challenge to navigate is the vaccine.  With greater access to the COVID-19 vaccine on the horizon, employers now face multiple decisions related to vaccination policies, including whether vaccination should be mandatory or simply encouraged, how employers can verify vaccination and properly maintain vaccination related records, and whether and how to offer vaccination related incentives to employees. As the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH) point out in their respective guidance on vaccines, there are several factors that employers should carefully consider when drafting a vaccination policy.

1st Consideration: May an Employer Make Vaccinations Mandatory?  

The short answer is yes.  Both the EEOC and DFEH have clarified that the vaccination itself, or requiring proof of vaccination, is not a prohibited or restricted “medical examination” under the ADA or FEHA.  However, employers who administer the vaccine themselves may run afoul of the ADA by asking the CDC recommended pre-screening questions prior to administration of the vaccine, as these may elicit “disability-related” information.  This potential pitfall can be avoided by either making the vaccination voluntary or by allowing employees to undergo the pre-screening process and receive the vaccine from a third party that does not have a contract with the employer (such as a pharmacy or other health care provider).  For more information regarding medical examinations and prohibited disability-related inquiries, please refer to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations

Similarly, the EEOC has clarified that the Genetic Information Nondiscrimination Act (GINA) does not prohibit employers from requiring or providing vaccinations, but employers who administer the vaccine may not elicit “genetic information” in the pre-screening process.  Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the term, conditions, and privileges of employment; (2) acquiring genetic information (except in six narrow circumstances); or (3) disclosing genetic information (except in six narrow circumstances). 

Based on this prohibition, the EEOC recommends that any pre-screening questioning be done by an employee’s own healthcare provider rather than the employer or an employer-hired doctor.  Additionally, if an employee is required to provide proof of vaccination from a third party, the employer should warn the employee not to provide any genetic information as part of the proof.   

2nd Consideration: May Employers Request Verification of Vaccination, and How Should Such Information Be Handled?

Yes, employers may ask an employee for verification of vaccination; however, any such inquiry should be limited in scope and should not elicit information related to an employee’s family members (e.g., employers cannot ask if the whole family has received a vaccine). 

Further, because any information related to an employee’s vaccination status is considered a medical record, employers must comply with applicable recordkeeping and storage requirements in order to maintain the privacy of the information.  For example, an employee’s statement that the employee has been vaccinated or has contracted COVID-19 is considered a medical record.  Likewise, an employer’s notes or any other document related to questioning an employee about symptoms or vaccination status also constitutes a medical record that must be maintained confidentially and stored separately from the employee’s personnel file.  Additionally, if employee medical information is stored electronically, precautions should be taken to limit access to only those who are expressly authorized to view it, for instance, through use of passwords and other security measures, and only making such information available to those who are on a “need-to-know” basis.

The various laws also have different retention requirements.  Generally, under the ADA and GINA, employers must store medical and genetic information for one year, the FMLA requires employers to retain leave requests for three years, and OSHA requires employers to securely store records concerning workplace accidents for five years.  Thus, an employer must determine which law(s) covers different types of records. 

3rd Consideration: What Must Employers Do If Employees Object to Getting Vaccinated Due to a Medical Condition, Disability, Religious Reason or “Just Because”?

Employers who decide to implement a mandatory vaccination policy should be prepared to respond to various employee objections.  For example, if an employee objects to vaccination based on a medical condition, disability or religious reason, employers are required to engage in an interactive process to determine whether there is reasonable accommodation that would allow the employee to perform the essential functions of his/her position without the vaccination.  Potential accommodations might include, but are not limited to, telework, installing physical partitions, providing the employee with additional PPE, changing the employee’s schedule to minimize contact with other individuals, or providing a leave of absence.  

On the other hand, if an employee objects for a reason that is not legally protected, i.e., “just because,” the employer is not required to accommodate and may exclude the employee from the workplace, including by terminating employment.  However, before taking such action, the employer should carefully document the employee’s stated reason for objection to avoid a later argument that the employee was subject to retaliation for engaging in protected concerted activity under the National Labor Relations Act (by complaining on behalf of a group of employees) or was acting as a whistleblower because full FDA approval was not granted to the available vaccines.   

4th Consideration: What Are the Potential Benefits of a Vaccinated Workforce?

Achieving a high rate of vaccination among employee groups will likely reduce infections and prevent disruptions associated with COVID-19.  Vaccinated employees may also feel more comfortable reentering the workplace, allowing employers to bring more workers back on-site and boost communication, collaboration, and engagement.  For some employers, an employee vaccination requirement may also directly benefit their bottom line if customers feel more comfortable patronizing their stores or interacting with their employees in person.

However, even with many employees being vaccinated, experts predict that government restrictions may not disappear for months.  While the CDC has recently modified some quarantine restrictions for vaccinated people and relaxed guidance for small family gatherings with vaccinated persons, many of the mandated rules or restrictions, such as social distancing guidelines, limited occupancy rules, employee symptom screening procedures, PPE requirements, and Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards remain in place.  Under the Cal/OSHA rules, for example, the same quarantine periods apply to vaccinated and unvaccinated employees exposed to a COVID-19 positive person.  It is uncertain when Cal/OSHA will update its workplace rules for vaccinated employees.

Thus, employers will want to balance the benefits of a vaccination requirement against the cost of a mandatory program.  For example, if employers require employees to be vaccinated, the time the employee spends getting vaccinated is compensable and any costs would be reimbursable business expenses.  Employers should also consider the administrative burden of conducting individualized assessments of employee objections to vaccination, the risks of legal claims related to mandatory vaccinations, and the anticipated continuation of pandemic-related health and safety requirements and restrictions.  Accordingly, some employers may prefer to limit any vaccination requirement to particular subsets of employees.  

5th Consideration: How Can Employers Lawfully Encourage Vaccination?

For the reasons discussed above, many employers may opt to encourage or incentivize their employees to get vaccinated, rather than require it. However, this option also requires some precautions.

One approach is to make vaccination part of an existing wellness program or health initiative and support participation by providing employees with information, answers to commonly asked questions/concerns about the vaccine, educational materials, etc.  However, under the ADA and GINA, wellness programs must be voluntary in nature and administered in accordance with specific criteria.  For example, information gathered under a wellness program must be stored confidentially.  Additionally, information must be gathered on a strictly voluntary basis, such that employees do not feel coerced.  Financial incentives to participate that are more than de minimis may be deemed coercive and, thus, jeopardize the voluntary nature of the wellness program.  The EEOC recently published, but then withdrew, guidance on what constitutes a de minimis incentive, creating considerable uncertainty on this issue.  

Other potential incentives include covering vaccination-related costs, providing paid time off to be vaccinated or to recover from side effects, or providing small prizes, gift cards, etc.  Offering incentives is permissible, but should be modest to prevent claims that an individual who is unable to receive the vaccine due to medical or religious reasons is treated less favorably.  In such cases, the employer should offer a reasonable accommodation that allows such employees to obtain the incentive.   

What This Means

Employers implementing vaccination policies have multiple considerations and risk issues to navigate.  It is recommended that such policies address the following:

  • whether vaccination is mandatory or voluntary;
  • whether the employer or third party will administer the vaccine;
  • whether the employer or employee will pay for the vaccine and/or the time it takes to be vaccinated;
  • the scope of the policy (i.e., to which employees it applies);
  • whether to offer incentives to employees who are vaccinated;
  • whether or not employees are penalized for noncompliance;
  • instructions on how to provide proof of vaccination;
  • how to contact Human Resources for an accommodation or any other concerns;
  • a GINA disclaimer; and
  • a reminder that all COVID-19 health and safety rules will remain in place until expressly changed by the employer.

For assistance with assessing whether to mandate or incentivize vaccinations, addressing employee objections, or drafting a vaccination policy, feel free to contact the attorneys at Paul, Plevin, Sullivan & Connaughton LLP.