Lawyer Up: Employers need to weigh options on vaccine policies

The consensus among infectious-disease experts and state health departments is that we will not return to normalcy until widespread vaccination and herd immunity against COVID-19 is achieved. For many employers, particularly in industries where remote work is not possible, such as retail, health care and manufacturing, vaccination is expected to affect ongoing operations and a safe return to the workplace. These employers will likely consider whether to mandate or incentivize vaccinations.

Employers also might wish to help facilitate vaccination of their employees, or simply serve as a source of information, helping educate employees about vaccination and providing updates on how and where to get vaccinated.

There is no one-size-fits-all approach for employers, and the legal landscape continues to shift. Below are several considerations for employers to keep in mind as they establish their policies around vaccination.

To mandate vaccinations or not

The Equal Employment Opportunity Commission previously stated that individuals with COVID-19 may be excluded from the workplace if their presence poses a direct threat to the health or safety of others. Recently, the EEOC updated its guidance to address workplace vaccination issues. Employers can mandate that employees get vaccinated, subject to certain exceptions such as disability or religious reasons.

Employers must consider governing laws, such as the Americans With Disabilities Act, the Genetic Information Nondiscrimination Act and Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion and sex, including pregnancy.

For example, when considering the administration of a COVID-19 vaccine by employers (or by third parties contracted by employers to administer the vaccine), it is likely that pre-screening questions would implicate the ADA’s provision on disability-related inquiries. For employers who choose to administer the vaccine, pre-screening questions must be job-related and consistent with business necessity. This standard would not need to be met, however, if the vaccine is instead administered by a third party who does not have a contract with the employer, such as a pharmacy or other health care provider.

Incentivizing vaccinations

Employers that adopt a voluntary approach can legally provide incentives for employees to get vaccinated to help foster safe workplaces and immunity in their communities. Employers may offer paid (or unpaid) time off to obtain the vaccine. Retail chains Trader Joe’s and Aldi, for example, are offering two hours of pay to employees for each vaccine dose received so that employees do not have to choose between getting vaccinated and coming to work. Other incentives employers could consider include paying for vaccine-related costs such as copays or providing additional sick leave if needed by employees to recover from side effects from the vaccination.

If incentives are part of a voluntary wellness program, employers must consider what incentives are legally allowable.

Communications and other opportunities

Employers can choose to host a vaccination clinic on premises, or contact state health officials to better understand the state’s timeline and inform employees about when they should get vaccinated or how to sign up. Organizations also may be a source of information on vaccine safety and efficacy.

Growing vaccine hesitancy, some of which may be a result of misinformation, is creating an opportunity for employers to play the role of thought leader and potentially have a positive impact on public health. Regardless, it generally behooves employers to determine and communicate their stance on vaccinations early on to help preempt speculation and confusion about expectations within their organizations.

New rules

Employers also must keep in mind that the legal landscape around vaccinations and safe workplaces continues to shift. The new presidential administration is expected to usher in a series of changes that might impose requirements on employers to address COVID-19.

For example, President Joe Biden signed executive orders aimed at increas- ing COVID-19 workplace safety measures, and asked the U.S. Department of Labor to issue guidance clarifying that workers who quit zjobs due to unsafe working conditions can still receive unemployment benefits.

The Occupational Safety and Health Administration will issue new guidance in early February and new emergency temporary standards by mid-March.

Final thoughts

Employers could have an important role to play in the discussion on vaccine education and promotion. Employers should consult with counsel to ensure compliance with applicable laws as employers consider options that may be right for their organization.

Melissa Lambert is a partner in the litigation practice group at Carlsmith Ball LLP and concentrates her practice in commercial, employment, and trust and estate litigation. She can be reached at mlambert@carlsmith.com.