COVID-19 Vaccinations and the Workplace: A Primer for Employers
March 26, 2020
Following the approval of three COVID-19 vaccines in the United States, employers are considering whether to adopt COVID-19 vaccination policies. We offer the following as a guide.
Can I adopt a mandatory COVID-19 vaccination policy? If so, are there employees who may be exempt from a vaccination requirement?
Although EEOC guidance provides that employers may lawfully require employees to be vaccinated, employers should understand that certain employees may be excused from any such requirement.
Individuals with certain disabilities that are incompatible with the vaccine or employees whose sincerely held religious beliefs preclude vaccination may be entitled to reasonable accommodation excusing them from a vaccine requirement.
Once an employer is on notice that an employee’s disability or religious belief prevents them from receiving a vaccine, the employer must engage in an interactive process with the employee to determine whether it can accommodate the employee without undue hardship to the employer.
Accommodations might include: remote work arrangment, modification of duties to limit at-risk activities, or continued use of infection control strategies (such as facial coverings and social distancing restrictions) after Massachusetts safety protocols are lifted.
Disabled employees who cannot be accommodated may be physically excluded from the workplace if the employer can demonstrate that the unvaccinated employee poses a direct threat to the workplace. An employee poses a direct threat if there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
To determine whether a direct threat exists, employers must conduct an individualized assessment of four factors:
The duration of the risk;
The nature and severity of the potential harm;
The likelihood that the potential harm will occur; and
The imminence of the potential harm.
To find that a direct threat exists in the context of COVID-19, an employer must determine that the unvaccinated individual will expose others to COVID-19 at the worksite. Employers should be aware that this is a high threshold to meet, and as the number of vaccinated individuals increases, this threat is likely to decrease. Employers should also consider how effective their current safety protocols have been at preventing the infection and transmission of COVID-19; if current safety protocols have proven effective, the employer may have a more difficult time meeting the direct threat threshold.
Are there other factors I should consider before adopting a mandatory vaccination policy?
Yes, employers should also consider the following when determining whether to adopt a mandatory COVID-19 vaccination policy.
Paid time. Under the Fair Labor Standards Act, employees must be paid for all hours worked. “Hours worked” includes time an employee spends waiting for and/or receiving medical attention either on their employer’s premises or at the direction of their employer during their normal working hours on days when the employee is working. This means that the employer must pay employees for time they spend getting a required COVID-19 vaccine if they are vaccinated at work or during their regular working hours.
Travel time. The Massachusetts Attorney General’s Fair Labor Division has also indicated that if an employer requires that an employee receive the vaccine at a specific location and/or on a specific date, travel time and travel expenses may also be compensable.
Possibility of workers’ compensation claims. In the event an employee has a negative reaction to a vaccine required by the employer, they may be able to file a successful claim for workers’ compensation benefits.
Collective bargaining agreements. If the employer’s workforce operates under a collective bargaining agreement, the employer should review the terms of the agreement to determine whether it authorizes a vaccination requirement, or if a vaccination requirement should be subject to bargaining.
Vaccine availability. Employers should also account for the fact that employees can only do so much to obtain a vaccine that is in short supply and not authorized for use by all individuals.
Workplace culture. Will the policy be well-received, or will the employer face significant resistance from employees?
Do I have to adopt a mandatory policy, or can I encourage my employees to get vaccinated?
If employers are concerned by the complications associated with implementing a mandatory COVID-19 vaccination policy, they should consider encouraging rather than requiring vaccinations. Although under this approach an employee cannot guarantee that its workforce will get vaccinated, employers can encourage employees by:
Educating them about the vaccine, including why it is considered safe and advisable;
Expressing early and often that employees are strongly encouraged to get vaccinated; and/or
Providing resources on where employees can get vaccinated or partnering with a third-party to make vaccinations available at the employee’s worksite.
Employers should be wary of offering cash payments or other incentives for vaccinated employees to avoid creating an inequity between those who are able to receive the vaccine and those who, because of their disability or religion, cannot be vaccinated.
Before making any staffing or employment changes based on vaccination status, employers should consult with an attorney.
Can I require that my employees provide proof of vaccination?
Yes, employers may ask or require that employees provide proof of receipt of a COVID-19 vaccination; however, employers should direct employees to only provide the place and date(s) of vaccination and the vaccine’s name, and direct them not to provide any medical or genetic information. Any vaccination information employers collect should be kept confidential.
Can I offer onsite COVID-19 vaccinations to my employees?
Yes. However, employers should consult with counsel before developing an onsite vaccination program to ensure that screening questions that are asked by the vaccine administrator to determine whether an individual has a medical condition that prevents them from receiving the vaccine do not run afoul of the Americans with Disabilities Act (“ADA”).
Employers must also keep any employee medical information obtained through a vaccination program confidential. This information must be stored separately from the employee’s personnel file.
Can an employee take FFCRA leave to get vaccinated?
Yes, if the employer voluntarily decides to offer leave. As described in greater detail here, under the Families First Coronavirus Response Act (“FFCRA”), most employers with fewer than 500 employees were required to provide employees impacted by COVID-19 with emergency paid sick leave (EPSL) or expanded family and medical leave (EFML) between April 1 and December 31, 2020. Private sector employers that provided this leave could also seek reimbursement for the costs of leave through refundable tax credits.
Although covered employers are no longer required to provide EPSL or EFML, the American Rescue Plan of 2021 recently extended eligibility for these tax credits until September 30, 2021, and expanded qualifying leave to include leave provided to an employee to obtain a COVID-19 vaccine or recover from the effects of the vaccine. In other words, although employers are not required to provide employees with EPSL or EFML to get vaccinated for COVID-19, they can choose to do so and claim a tax credit for the time employees take off from work.
However, even if an employer chooses not to offer employees EPSL or EFML to get vaccinated for COVID-19, the Massachusetts Attorney General’s Fair Labor Division has stated that using earned sick time to cover absence from work due to feeling ill after receiving a vaccine is an allowable use of earned sick leave in Massachusetts.
Are employers required to honor employee requests to continue remote work?
Generally no. Employers that allowed their workforce to work remotely during the COVID-19 pandemic are not required to permit employees to work remotely indefinitely. However, if an employee asks to continue working remotely as a reasonable accommodation for a disability, whether related to COVID or not, the employer should engage in the interactive process to determine whether the requested accommodation would pose an undue hardship for the employer or if the employer can effectively address the employee’s need through an alternative accommodation.
If my workforce is vaccinated, do I still need to use other infection control strategies such as social distancing and wearing face coverings?
Regardless of whether an employer adopts a mandatory or voluntary COVID-19 vaccination policy, employers must continue to maintain other infection control strategies, such as wearing face coverings and social distancing. Massachusetts businesses are still required to adhere to certain mandatory and sector-specific workplace safety protocols, which require social distancing, wearing face coverings, and capacity restrictions, among other requirements.
Although vaccinations greatly reduce the likelihood that an individual will contract COVID-19, their effect is not instantaneous and not 100% effective: according to the Centers for Disease Control (“CDC”), it typically takes a few weeks after the vaccination for a person to develop immunity against the COVID-19 virus. Scientists are also still learning how well vaccines prevent a person from spreading the COVID-19 virus to others, even if the vaccinated person does not become ill, and the extent to which current vaccines are effective against emerging strains of the virus.
For assistance with these developing issues, please contact Margaret H. Paget or Allyson E. Kurkerat Kurker Paget LLC.