Caleena S. Braig

By Caleena Braig

Ever since the early days of quarantining, “returning to normal” has been a topic of discussion. COVID-19 vaccinations are finally underway, bringing hope for normalcy. Employers will soon be asking employees who are currently working remotely to return to their workplaces. But many employers are unsure whether they should require or encourage their employees to be vaccinated and what their policies should look like.

The United States Equal Employment Opportunity Commission released advice on this topic on Dec. 16. In short: employers can mandate vaccine programs. Here are considerations for implementing vaccine programs in the workplace.

Can employers implement a mandatory vaccine program to return to work?

Yes. Employers can require COVID-19 vaccinations because they are not a medical examination.

If employers mandate a vaccine program, employers must comply with their obligations to accommodate employees with religious objections pursuant to Title VII of the Civil Rights Act and a disability under the Americans with Disabilities Act.

If the employer is the vaccine administrator, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries. The employer must demonstrate that the pre-vaccination questions are “job-related and consistent with business activity.” The employer can likely meet this standard because an unvaccinated employee would most likely pose a “direct threat” to others in the workplace, given the infectious nature of COVID-19. All medical information obtained from an employer’s vaccination program must remain confidential.

Can an employer require employees to provide proof of vaccination before returning to work?

Yes. The EEOC stated that it is not a disability-related inquiry to require an employee to show proof of vaccination. But, if an employee did not receive a vaccination, subsequent follow-up questions may elicit information about a disability and be subject to the ADA standard that it is “job-related and consistent with business activity.”

If an employer requires employees to prove they have received a COVID-19 vaccination, the employer cannot require the employee to supply any medical information as part of the proof. The employer should educate the employee about what classifies as medical information and ask them not to provide this information when reporting their vaccination.

If an employer requires a vaccine or proof of vaccination without offering on-site vaccinations during work hours, is the time spent getting vaccinated compensable?

Possibly. The U.S. Department of Labor will likely consider any employee’s time to get the vaccine to be compensable. To avoid any pitfalls, the employer should pay employees for time spent getting vaccinated.

If the employer mandates vaccinations and an employee objects to or is unable to receive the vaccine, what circumstances trigger an employer’s obligation to provide accommodations?

The two main circumstances that will trigger an employer’s obligation to provide accommodations is if the employee has a disability or holds a particular religious belief that prevents the employee from getting the vaccine.

The ADA requires employers to provide “reasonable accommodations” to employees with medical conditions that would make them unable to be vaccinated. While pregnancy or pregnancy-related medical conditions may trigger the obligation to provide an accommodation, fear of the vaccine likely does not qualify as a protected status triggering accommodation obligation unless the fear or anxiety is tied to a mental disability.

Title VII protects employees who refuse to take a mandatory vaccine because of religious beliefs. Church membership, faith or belief in God, or other similar proof of the religious belief is not required to substantiate a religious objection. While Title VII likely protects a strongly or sincerely held moral or ethical belief, political or general philosophical objections likely do not have the same protections.

Whatever the accommodation may be, the EEOC stated that employers may not disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

If an employer adopts a mandatory vaccine program, should the employer continue to impose other COVID-19 mitigation protocols?

Yes. On Jan. 29, OSHA issued revised COVID Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. All employees, regardless of vaccination, must continue to follow protective safety measures, such as mask-wearing, social distancing, and sanitizing. There is insufficient evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

If an employer implements a mandatory vaccination program and an employee has an adverse reaction, will that trigger a potential claim?

If an employer mandates vaccination and an employee becomes ill due to the vaccination, the employee can likely argue the illness arose out of and was in the course and scope of employment; therefore, it could be covered by workers’ compensation laws.

If an employer implements a mandatory vaccine requirement, can the employer terminate an employee for refusing to receive the vaccine?

An employer should be careful about terminating an employee based on an anti-vaccination belief. To be prudent, the employer should document discussions that the anti-vaccination belief is a political belief rather than a religious belief or a medical requirement. Also, the employer may want to incorporate other non-vaccine-related grounds for termination.

If the employer does not implement a mandatory vaccination program, can the employer consider voluntary, encouragement or incentive vaccination programs?

Yes. If the employer decides to implement a voluntary vaccine program or offer incentives to encourage employees to receive the vaccine, the employer should ensure the incentives do not have a coercive effect.  The incentives to participate in a wellness program should not be anything more than a de minimis incentive, and guidance is pending if this can be more than a water bottle or gift card for a free meal. Kroger recently reported it will pay its employees $100 store credit and 1,000 fuel points when employees receive the vaccine.

For employees who choose not to participate in the voluntary program because of religious beliefs or a disability, the employer must ensure that comparable incentives are available for those employees.

Vaccination protocols are new and require a lot of consideration for many employers. Whatever course of action is decided, we recommend clear and concise policies and communications to employees.

— Caleena Braig is a civil litigation attorney at Moye White.

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