It feels like ages ago when the COVID-19 vaccination first rolled out, and employers were scrambling with questions. But look how far we’ve come! Now, with many states easing (or eliminating) COVID-19 restrictions and opening bars, restaurants, theaters, and other favorite summertime spots, people are getting the vaccine and are ready to resume life as normal.
But with fears looming over how many people need to be vaccinated in order to truly put this pandemic behind us, and with uncertainties rising over COVID-19 variants, employers are still asking, “What can I do to require or encourage employees to take the vaccine? Can someone give me a summary? There has been so much information!”
In this newsletter, we provide a 30,000-foot-level guidebook for what employers can and can’t do, should and shouldn’t do, and might face in the future when it comes to the COVID-19 vaccine and moving forward.
Requiring employees to vaccinate
The Equal Employment Opportunity Commission (EEOC), the arm of the Department of Labor that enforces civil rights laws prohibiting workplace discrimination, issued guidance on mandating vaccines, saying that employers can in fact require their employees to vaccinate. We addressed this issue in depth in a prior newsletter back in December. For purposes of this newsletter, remember these few items if you are considering requiring your employees to take the vaccine:
There will be some employees who are not comfortable taking the vaccine. If you are considering requiring vaccination, think about whether you are willing to enforce that requirement uniformly to all of your employees (absent a disability or religious accommodation, see below). Giving exceptions to some employees and not to others could raise liability issues, so be sure you are ready to apply that requirement to all employees equally. Always administer the requirement in a nondiscriminatory manner.
That being said, remember that employees with ADA-protected disabilities and Title VII-protected sincerely held religious beliefs may not be required to vaccinate if they have legitimate objections to it or are medically unable to take it. Additionally, the EEOC has stated that employees who request exemption from vaccination requirements due to pregnancy should be allowed any exemption provided to other employees who are similar in their ability or inability to work. Be sure to engage in the interactive process to see what accommodations can be made for these employees. For example, is it reasonable for employees to continue wearing masks? Or social distance? All of this will depend on the nature of your business and the duties of the employee, so it is up to you to engage with the employee and figure out what can be reasonably done.
It’s up to you whether you’d like to present your vaccination requirement in a written policy. Either way, the EEOC has suggested that employers who plan to require vaccinations should inform their employees that requests for reasonable accommodation based on disability (or pregnancy or religion) will be considered on a case-by-case basis.
Encouraging employees to vaccinate
Incentivizing employees to vaccinate is tricky business because the ADA prohibits employers from requiring medical examinations or making “disability related inquiries.” However, there are exceptions to this rule, one such exception being “voluntary wellness programs” that include disability-related inquiries or medical examinations.
The EEOC long ago stated that wellness programs are “voluntary” as long as the employer “neither requires participation nor penalizes employees who do not participate.” When this guidance proved unhelpful, the EEOC later issued more specific guidance, clarifying that employee health programs involving disability-related inquiries or medical examinations are voluntary as long as:
The employer does not require employees to participate.
The employer does not deny employees group health plan coverage or benefits if they do not participate.
The employer does not take any adverse employment action against, interfere with, or coerce employees within the meaning of the ADA.
The employer provides employees with a written notice that employees are reasonably likely to understand and that describes the type of medical information that will be obtained, the purpose for which it will be used, and the restrictions on the disclosure of the employee’s medical information, including the persons who will be privy to the information and the methods that will be used to ensure its confidentiality.
Then along came COVID-19, and employers were searching for clarification on whether incentivizing employees to vaccinate, which would inherently involve medical inquiries, would be “voluntary wellness programs” and, if so, what incentives would take the program from “voluntary” to mandatory. The EEOC first issued guidance stating that de minimis incentives were permissible, which we discussed here. Then, in late May, the EEOC gave more clarification. We briefly wrote on this issue previously, but, for purposes of this summary, here’s what you need to know:
If an employer or its agent is administering the vaccine itself, any incentive must be “not so substantial as to be coercive.” This is because “a very large incentive could make employees feel pressured to disclose protected medical information.”
On the other hand, if an employer is offering incentives for employees who receive vaccinations on their own, such as from a pharmacy, public health department, or other healthcare provider, requesting documentation or other confirmation proving vaccination is not a disability-related inquiry and thus does not implicate the ADA. Therefore, once an employee discloses that he or she has been vaccinated, don’t ask further questions, as this could be classified as a disability-related inquiry.
As always, keep any medical information or certifications confidential.
Employees without vaccinations
If you plan on requiring employees to vaccinate, or if you are lifting workplace restrictions (masks, distancing, etc.) only for those who are vaccinated, keep in mind that there will be some employees who cannot, or prefer not to, take the vaccine. As discussed above, employees with qualifying disabilities and sincerely held religious beliefs may need reasonable accommodations.
Additionally, keep in mind that you can ask your employees whether or not they are vaccinated. Typically, employers are not permitted to ask employees about their medical condition if it is likely to illicit disability-related information. In the COVID-19 context, the EEOC has clarified that asking an employee about his or her vaccination status does not implicate the ADA because this question is not likely to disclose the existence of a disability. However, once an employee discloses whether he or she has been vaccinated, (1) don’t ask further questions about why he or she hasn’t been vaccinated or how the vaccine made him or her feel, as this may bring about disability-related information that is off limits; and (2) make sure to keep any information or medical certifications confidential.
Only time will tell whether the COVID-19 vaccination issues are behind us. With discussions floating around regarding variants, vaccination efficacy, and opening businesses, it’s unlikely we are totally out of the woods. So, for now, keep this guidebook handy for best practices, and stay abreast of the ever-changing EEOC guidance.
© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 181