Work and Employment Newsletter
It feels like it has been a long time since the COVID-19 vaccination was first introduced and employers began to grapple with questions. But look how far we’ve come! Now that many states are relaxing (or abolishing) COVID-19 restrictions and opening bars, restaurants, theaters, and other popular spots during the summer, people are receiving the vaccine and ready to go back to normal life.
But amid fears of how many people will need to be vaccinated to really leave this pandemic behind, and mounting uncertainties about COVID-19 variants, employers are still asking, “What can I do to ask or encourage employees who have favourited vaccine? Can someone give me a summary? There was so much information! “
In this newsletter, we provide a 30,000 foot guide that explains what employers can, should, and should not do about the COVID-19 vaccine and future developments.
Obligation to vaccinate employees
The Equal Employment Opportunity Commission (EEOC), the arm of the Department of Labor that enforces civil rights laws outlawing discrimination in the workplace, has issued vaccine regulation guidelines stating that employers can actually require their employees to vaccinate. We covered this topic in detail in an earlier newsletter in December. For the purposes of this newsletter, keep these few points in mind when considering obliging your employees to take the vaccine:
- There will be some employees who are not comfortable taking the vaccine. If you are considering vaccination, consider whether you are willing to enforce this obligation consistently on all of your employees (without obstruction or religious precautions, see below). Giving some employees exemptions and not others could raise liability issues. So make sure you are ready to apply this requirement equally to all employees. Always manage the requirement in a non-discriminatory manner.
- Remember, however, that employees with ADA-protected disabilities and Title VII-protected righteous religious beliefs may not be required to vaccinate if they have valid objections or are medically unable to vaccinate. In addition, the EEOC has stated that workers who request a vaccination waiver due to pregnancy should be granted any waiver granted to other workers with similar work ability or incapacity. Take part in the interactive process to see what arrangements can be made for these employees. For example, does it make sense that employees continue to wear masks? Or social distance? All of this depends on the nature of your business and the duties of the employee, so it is up to you to get in touch with the employee and figure out what can reasonably be done.
- It is up to you whether you want to state your vaccination needs in a written policy. In any event, the EEOC has suggested that employers wishing to request 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.
Encourage employees to vaccinate
Incentivizing employees to vaccinate is a delicate matter as the ADA prohibits employers from requesting medical examinations or asking “disability questions”. However, there are exceptions to this rule, one such exception being “voluntary wellness programs” that include disabled-related inquiries or medical examinations.
The EEOC long ago stated that wellness programs are “voluntary” as long as the employer “does not require participation or penalize workers who do not participate”. When these guidelines were not found to be helpful, the EEOC later issued more precise guidelines, clarifying that health programs for employees with disability-related examinations or medical examinations are voluntary as long as:
- The employer does not oblige employees to participate.
- The employer does not deny employees group insurance or benefits if they do not participate.
- The employer does not take any disadvantageous labor law measures against employees within the meaning of the ADA, does not disturb or force them.
- The employer shall provide workers with a written notice that workers are reasonably likely to understand, describing the type of medical information to be obtained, the purpose for which it will be used and the restrictions on disclosure of the worker’s medical information , including the people to whom the information is accessible and the methods used to ensure its confidentiality.
Then came COVID-19, and employers sought clarification on whether incentives for employees to vaccinate that would inherently involve medical inquiries were “voluntary wellness programs” and, if so, what incentives the program from “voluntary” to one would make mandatory. The EEOC initially issued guidelines that allow de minimis incentives, which we have discussed here. Then, at the end of May, the EEOC gave further clarifications. We wrote briefly on this topic before, but for this round-up you need to know:
- If an employer or his agent self-administer the vaccine, any incentive must “not be so significant as to be enforced”. Because “a very large incentive could lead to employees feeling pressured to disclose protected medical information”.
- Conversely, if an employer provides incentives for workers to self-vaccinate, e.g. B. from a pharmacy, health department or other health care provider, the request for documents or other confirmations to prove the vaccination is not a disabled-related request and thus does not imply the ADA. Therefore, once a staff member announces that he or she has been vaccinated, do not ask further questions as this could be classified as a disability-related request.
- As always, keep any medical information or certification confidential.
Employees without vaccinations
If you intend to require employees to be vaccinated or to lift job restrictions (masks, spacing, etc.) only for vaccinated people, keep in mind that there will be some employees who cannot or will not do the vaccine. As discussed above, employees with qualifying disabilities and serious religious beliefs may require reasonable accommodation.
Also, remember that you can ask your staff whether or not they are vaccinated. Typically, employers are not allowed to ask workers about their health if doing so is likely to prohibit disability-related information. In the context of COVID-19, the EEOC has made it clear that an employee’s question about his or her vaccination status does not imply the ADA, as this question is unlikely to suggest a disability. However, once a staff member reveals whether he or she has been vaccinated, (1) do not ask any further questions about why he or she was not vaccinated or how the vaccine made them feel, as this can lead to a disability. related information that is taboo; and (2) ensure that any information or medical certification is kept confidential.
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