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Infectious disease experts and government health officials agree that we will not return to normal until we have full vaccination and herd immunity to COVID-19. For many employers, especially in industries that do not work remotely such as retail, healthcare, and manufacturing, vaccinations are expected to interfere with day-to-day operations and a safe return to work. These employers are likely to consider whether to require vaccinations or incentives.
Employers may also want to help make vaccination easier for their employees, or simply serve as a resource to educate employees about vaccination and get information on how and where to vaccinate.
There is no one-size-fits-all approach for employers and the legal landscape continues to change. Below are some considerations employers should consider when setting their vaccination guidelines.
Prescribe vaccinations or not
The Equal Employment Opportunity Commission previously stated that people with COVID-19 can be excluded from work if their presence is a direct threat to the health or safety of others. Recently the EEOC updated its guidelines to address vaccination issues in the workplace. Employers can require workers to be vaccinated, subject to certain exceptions such as disability or religious reasons.
Employers must consider laws such as the Disabled Americans Act, the Genetic Information Non-Discrimination Act, and Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion, and gender, including pregnancy.
For example, if the administration of a COVID-19 vaccine by employers (or by third parties hired by employers to administer the vaccine) is considered, it is likely that pre-screening questions will imply determining the ADA on disability-related requests . For employers who choose to give the vaccine, pre-screening questions must be job-related and meet business needs. However, this standard would not have to be met if the vaccine was instead administered by a third party who does not have a contract with the employer, such as a pharmacy or other health care provider.
Incentives for vaccinations
Employers who take a voluntary approach can provide legal incentives for employees to get vaccinated to promote safe jobs and immunity in their communities. Employers can offer paid (or unpaid) time off to get the vaccine. The retail chains Trader Joe’s and Aldi, for example, offer their employees two hours’ wages for each vaccine dose they receive, so that employees don’t have to choose between vaccination and work. Other incentives employers might consider include paying vaccine-related costs such as copays or providing an extra sick leave if workers need it to recover from the side effects of vaccination.
When incentives are part of a voluntary wellness program, employers need to consider what incentives are allowed by law.
Communication and other opportunities
Employers can choose to set up an on-site vaccination clinic or contact state health officials to better understand the state’s schedule and let employees know when to get vaccinated or how to register. Organizations can also be a resource for information on the safety and effectiveness of vaccines.
The growing reluctance to adopt vaccines, some of which may be due to misinformation, is an opportunity for employers to act as thought leaders and potentially have a positive impact on public health. Regardless, it is generally up to employers to determine and communicate their attitudes towards vaccination early on to avoid speculation and confusion about expectations in their organizations.
Employers must also take into account that the legal environment for vaccination and safe jobs continues to change. The new presidential administration is expected to introduce a number of changes that could place demands on employers regarding COVID-19.
For example, President Joe Biden signed executive orders to increase COVID-19 workplace safety measures and called on the U.S. Department of Labor to issue guidelines clarifying that workers who leave zjobs due to unsafe working conditions can continue to receive unemployment benefits.
The health and safety authority will issue new guidelines in early February and new temporary emergency standards by mid-March.
Employers could play an important role in discussing vaccine education and promotion. Employers should consult an attorney to ensure compliance with applicable laws, as employers will consider options that may be appropriate for their organization.
Melissa Lambert is a partner in litigation practice at Carlsmith Ball LLP and her practice focuses on commercial, labor, trust and estate disputes. She can be reached at [email protected]