The COVID-19 Vaccine Rollout: What Employers Want To Know – Employment and HR
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Key Points:
- Vaccinations for COVID-19 are picking
up steam around the country as supply increases and eligibility
expands. - Now is the time for employers to
think through issues raised by employee vaccination policies and
programs. - We address key questions about
mandatory and voluntary policies, including discrimination, wage
and hour, collective bargaining, safety, privacy and general
liability considerations, and offer recommendations for employee
vaccination programs.
One year into the pandemic, the U.S. Food and Drug
Administration (FDA) has issued three Emergency Use Authorizations
(EUAs) for COVID-19 vaccines, with more vaccines in various stages
of testing. The vaccines are shown to be effective at protecting
vaccinated people against symptomatic and severe COVID-19, and,
according to the U.S. Centers for Disease Control (CDC), “a
growing body of evidence suggests that fully vaccinated people are
less likely to have asymptomatic infection and potentially less
likely to transmit SARS-CoV-2 to others.”1 In most states,
vaccine eligibility still remains restricted to certain groups.
However, some states have made vaccines available to the general
public, and President Biden has announced that every state will
open vaccination to all adults by April 19. To that end, the
federal government has arranged to purchase enough doses of the
Pfizer-BioNTech and Moderna vaccines by the end of July to
vaccinate 300 million individuals with the recommended priming and
booster shots,2 along with 100 million doses of
Johnson & Johnson’s single-dose vaccine by the end of
June.3 All doses purchased by the federal
government are offered to recipients free of charge.
With widespread vaccine eligibility and availability on the
horizon, employers should consider whether a vaccination policy is
right for their workplaces. Such policies implicate a broad range
of employment laws and regulations. The following questions and
answers address many of the legal issues that employers should take
into account as they evaluate the role of vaccinations in their
return to work plans. Although we focus on federal law, employers
should in all instances consider any applicable state and local
laws as well. Likewise, employers considering a vaccination policy
should consult with experienced counsel.
Mandatory Vaccinations and Discrimination Concerns
May employers require employees to get vaccinated for
COVID-19?
Yes, subject to exceptions under antidiscrimination laws, though
employers should monitor legislative and litigation developments
that could impact employer vaccination programs. At present, no
laws expressly prohibit employers from mandating COVID-19
vaccinations as a condition of employment.4 Bills that have the
effect of prohibiting employers from mandating COVID-19
vaccinations prior to full approval by the FDA have been proposed
in a number of states, including Alabama, Arizona, Connecticut,
Illinois, Iowa, Kansas, Kentucky, Maryland, Minnesota, New York,
Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Texas and Washington,5 but none have garnered significant
momentum to date. Further, a New York state legislator has
introduced a bill mandating vaccination if New York fails to
achieve herd immunity.6 Additionally, at least one lawsuit
has been filed challenging an employer vaccination mandate on
public policy grounds while COVID-19 vaccines are administered
under an EUA and not yet fully approved by the FDA.7
In considering whether to implement a mandatory vaccination
program, employers must be mindful of the requirements of various
discrimination laws that may require exceptions, such as the
Americans with Disabilities Act, Title VII of the Civil Rights Act
of 1964, the Pregnancy Discrimination Act and similar state or
local laws. These considerations are addressed below.
How does the Americans with Disabilities Act apply to
vaccination policies?
Under the Americans with Disabilities Act (ADA), employers may
only conduct medical examinations on current employees, or ask
current employees questions that are likely to elicit
disability-related information, where the exams or questioning are
“job-related and consistent with business
necessity.”8However, in guidance published in December
2020, the Equal Employment Opportunity Commission (EEOC) clarified
that vaccine administration alone, or employers asking about or
requiring proof of vaccination, is not a medical examination within
the meaning of the ADA.9 Therefore, under the ADA, employers
would generally be permitted to mandate that employees get
vaccinated.
However, complications may arise to the extent an employer were
to provide vaccinations on-site or otherwise contract with a third
party to administer the vaccine, options that may exist as
vaccinations become more widely available to the public. In order
to obtain a vaccine, employees need to answer screening questions
for “contraindications” to the vaccine (i.e., medical
conditions that increase the risk for a serious adverse
reaction).10 According to the EEOC, while the
fact that somebody has been vaccinated is not a medical inquiry,
the pre-screening questions for obtaining the vaccine
are medical inquiries within the meaning of the
ADA. Therefore, before an employer can permissibly ask the
pre-screening questions, the employer must be able to show that
mandatory vaccination is job-related and supported by business
necessity. To satisfy this standard, the EEOC’s guidance states
that the employer must have a “reasonable belief, based on
objective evidence, that an employee who does not answer the
questions and, therefore, does not receive a vaccination, will pose
a direct threat to the health or safety of [the employee] or
others.”11
The EEOC suggests two alternatives that would allow employers to
implement vaccination programs without having to demonstrate that
non-vaccinated employees pose a “direct threat.” First,
employers may implement strictly voluntary vaccine programs. So
long as the employer makes vaccines available to employees on a
voluntary basis, and thus employees’ decision to answer the
pre-screening questions is likewise voluntary, the ADA’s
restrictions on medical inquiries and exams are not implicated.
Second, an employer can require that employees receive vaccines
from a public vaccination site, or a health care provider, without
employer involvement.
The EEOC’s guidance further explains that requiring workers
to offer proof that they have received a COVID-19 vaccine is
permissible because an employee who refuses to do so may have
reasons for not being vaccinated that are entirely unrelated to a
disability. However, the EEOC’s guidance also cautions
employers that, to avoid ADA implications, they may want to warn
employees not to include any medical information when submitting
vaccination proof.
What exceptions to a mandatory vaccination policy must be made
under the ADA?
Employers may need to make exceptions to mandatory vaccination
policies for employees with disabilities that prevent them from
being vaccinated. The EEOC’s guidance on this issue explains
that, consistent with the ADA, an employer may mandate COVID-19
vaccines as a safety-based job qualification as long as the
employer can demonstrate that unvaccinated employees would pose a
direct threat to the health and safety of the employee or others.
However, the employer still must engage in an interactive process
with employees who claim that a disability prevents them from
receiving the vaccine, both to explore accommodation alternatives
such as remote work and, in the absence of a viable accommodation,
to ensure that a “direct threat” supports excluding the
disabled employees from the workplace.12 In the case of
the latter, the EEOC states that employers should conduct an
individualized assessment of four factors: (1) the duration of the
risk; (2) the nature and severity of the potential harm; (3) the
likelihood that the potential harm will occur; and (4) the
imminence of the potential harm.
The EEOC guidance further suggests that an unvaccinated employee
who could infect others in the workplace would likely qualify as a
“direct threat.” But an employer must still conduct an
individualized determination of the four factors above to assess
the risk and degree of the potential harm before reaching that
conclusion. For example, an employer may be unable to establish
that an employee poses a direct threat to others at the worksite
where the employee’s workspace is isolated, the employer has
not had issues with workplace outbreaks, and the employer is in
compliance with all CDC recommended safety measures.
Finally, even when a direct threat justifies excluding
unvaccinated employees from the worksite, the EEOC reiterates that
an employer cannot automatically terminate the employee and must
consider teleworking as a reasonable accommodation, as well as
ensure compliance with paid or unpaid leave protections under
federal, state and local laws. The EEOC’s guidance likewise
explains that consideration must be given to the effectiveness of
remote work arrangements during the pandemic because “the
temporary telework experience could be relevant to considering the
renewed request. In this situation, for example, the period of
providing telework because of the COVID-19 pandemic could serve as
a trial period that showed whether or not this employee with a
disability could satisfactorily perform all essential functions
while working remotely, and the employer should consider any new
requests in light of this information.”
How does the Pregnancy Discrimination Act apply to vaccination
of employees?
According to the CDC, pregnant individuals are at increased risk
for severe illness from COVID-19, and there is limited data at this
time about the safety of COVID-19 vaccines for people who are
pregnant.13 The federal Pregnancy
Discrimination Act (PDA) generally forbids discrimination based on
pregnancy with respect to any aspect of employment. The PDA
requires an employer to provide the same benefits of employment to
pregnant employees that it provides to all other employees with
similar abilities or inabilities to work. This means that an
employer who grants accommodations to other, nonpregnant employees
with similar inabilities to work must either do so for pregnant
employees or have a legitimate and nondiscriminatory explanation
for treating pregnant employees less favorably. Therefore, an
employer’s refusal to excuse a pregnant employee from a
vaccination requirement could give rise to a claim under the PDA if
nonpregnant employees are excused from the requirement. Certain
pregnancy-related medical conditions may also qualify as
disabilities under the ADA and be entitled to reasonable
accommodations.
What if an employee objects to vaccination on religious
grounds?
Employers may need to make exceptions to mandatory vaccination
policies for employees with sincerely held religious beliefs that
prevent them from being vaccinated. Title VII of the Civil Rights
Act of 1964 and various state laws prohibit discrimination based on
religion. This protection includes requiring employers to
accommodate an employee’s sincerely held religious beliefs,
practices or observances. Applying this standard, the EEOC’s
guidance explains that an employee may be entitled to a reasonable
accommodation that includes excusing the employee from a mandatory
vaccine requirement due to religious objections.
The EEOC recommends that employers assume a request for
religious accommodation is legitimate unless there is an objective
basis for questioning either the religious nature or sincerity of a
particular belief, practice or observance. However, the Title VII
standard for providing religious accommodations is not as demanding
as the ADA standard. Under Title VII, an employer need not provide
a religious accommodation if doing so would require the employer to
bear “more than a de minimis cost.” Costs to be
considered include not only financial costs but also other burdens
on the employer’s business. For example, courts have found more
than a de minimis cost where an accommodation would impair
workplace safety or cause coworkers to carry the accommodated
employee’s share of potentially hazardous or burdensome
work.14Therefore, the risk of COVID-19 exposure
to coworkers or customers posed by an unvaccinated employee might
exceed the de minimis cost threshold, although employers should
consider whether any such cost could be mitigated through
alternative accommodations, such as remote work.
What if an employee objects to vaccination for personal reasons
unrelated to a medical condition or religious belief?
The EEOC recognizes that “[s]ocial, political, or economic
philosophies, as well as mere personal preferences, are not
‘religious’ beliefs protected by Title VII.”15
Employees who have refused other types of mandatory vaccination
based on personal preferences or other reasons unrelated to a
medical condition or religious belief have been unsuccessful in
asserting viable claims under Title VII. For example, the Third
Circuit Court of Appeals has twice dismissed Title VII claims by
employees who challenged their employer’s mandatory flu
vaccination policy on the basis of strongly held personal beliefs
opposing vaccination because such beliefs are not religious in
nature.16 It is likely that courts would
analyze objections to COVID-19 vaccinations in the same manner.
However, even if an employee’s objection to vaccination is not
based on a disability or religious belief, an employer should
thoughtfully consider the request before taking any action in
response.
Does GINA apply to employee vaccinations?
No, so long as the vaccinations are voluntary, or are not
administered by the employer or a third party engaged by the
employer. Under Title II of the Genetic Information
Nondiscrimination Act (GINA), employers may not (1) use genetic
information to make decisions related to the terms, conditions and
privileges of employment, (2) acquire genetic information except in
six narrow circumstances, or (3) disclose genetic information
except in six narrow circumstances. The EEOC confirms that
vaccination for COVID-19 itself does not implicate GINA, even if
the vaccine uses messenger RNA (mRNA) technology, as the Pfizer and
Moderna vaccines do. mRNA vaccines work by introducing an RNA
sequence into the body, which then triggers instructions for the
body’s cells to generate proteins to create an immune response
to a virus.17 By contrast, Johnson &
Johnson’s vaccine utilizes “viral vector” technology
that uses a modified, harmless version of a virus as a carrier to
deliver immunity instructions to cells in the body.18Although
the EEOC has not specifically opined whether the technology of the
Johnson & Johnson vaccine by itself implicates GINA, it is
unlikely that it would, given that viral vector vaccines do not
rely on genetic information.19
As with the ADA, an employer’s administration of the vaccine
may implicate GINA if pre-vaccine screening questions elicit
genetic information (e.g., family medical history information)
pursuant to an employer’s mandatory vaccination policy.
However, like the analysis under the ADA, such pre-screening
questions would not implicate GINA if the employer’s policy is
voluntary and thus the decision to answer pre-screening questions
is voluntary as well. Such questions would also not implicate GINA
if asked by an independent provider. Therefore, employers can avoid
the risk of violating GINA by simply asking employees to provide
proof of vaccination or by adopting a voluntary policy. Of course,
regardless of whether an employer’s program is mandatory or
voluntary, GINA is not implicated where pre-screening
questionnaires, such as the CDC’s model questionnaire, contain
no questions regarding family medical history.20
May employers offer employees incentives to get
vaccinated?
Yes, with limitations. As explained above, the restrictions in
the ADA and GINA regarding medical and genetic inquiries are
inapplicable when an employer’s vaccination program is
completely voluntary. Whether a vaccination program is considered
truly voluntary, however, will depend upon the nature and scope of
the awards or incentives that are tied to participating in the
program.
In January, before the change in presidential administration,
the EEOC proposed new regulations under the ADA and GINA that
interpreted a “voluntary” wellness program as a program
where the employer offers no more than a de minims incentive, such
as a water bottle, to encourage employee participation, reasoning
that incentives cannot be so attractive that they have the effect
of coercing an employee into providing information protected by the
ADA or GINA.21 However, the EEOC’s proposed
rule was withdrawn in compliance with the Biden-Harris
administration’s freezing of all pending rulemaking by the
previous administration,22 and the EEOC has not announced if
or when employers should expect further guidance on wellness
programs.
In light of the legal uncertainty under the ADA and GINA
surrounding employer options for offering incentives tied to
wellness programs, on February 1, a number of
associations—including the U.S. Chamber of Commerce, the
Society for Human Resource Management and others—wrote a
letter to Charlotte Burrows, the newly appointed chair of the EEOC,
urging “the EEOC to issue guidance providing clarification on
the extent to which employers may offer their employees incentives
to vaccinate.”23 As of publication, the EEOC has
not issued any such guidance.
If the employer is not involved in administering vaccines
(directly or indirectly by using a third party), then the
EEOC’s wellness rule—if and when it is
issued—likely would not come into play. Asking employees
whether they have been vaccinated, and/or offering incentives for
such vaccinations, likely would not involve a “medical
exam” or disability-related inquiry, and thus would not
implicate the ADA. However, the ADA requires employers to provide
reasonable accommodations that allow employees with disabilities to
participate equally in wellness initiatives, including eligibility
for incentives, regardless of whether the initiative is covered by
the EEOC’s wellness rule. Therefore, the employer would still
need to engage in the ADA interactive process and provide
reasonable accommodations to the extent doing so would enable
employees with disabilities to participate in the incentive and
would not cause an undue burden.
Given the uncertainty in this area, employers are wise to be
cautious with respect to vaccination incentives until the EEOC
publishes guidance. One potential option to incentivize vaccination
would be to offer paid time off to allow employees who choose to be
vaccinated adequate time to make vaccination appointments, become
vaccinated, and recover from potential side effects without
worrying about missed work. Paid time off reasonably offered to
keep employees who choose to be vaccinated whole is likely to be
considered a de minimis incentive, and persons with disabilities
who cannot get vaccinated for medical reasons would not need to
devote time to making vaccination appointments, becoming
vaccinated, and recovering from potential vaccine side effects.
What protections do employees have for raising concerns about
an employer’s vaccination program?
The National Labor Relations Act (NLRA) protects both union and
nonunion employees from interference with broadly defined
“concerted activities.” Concerted activity may include
expressing concerns about workplace safety, refusing to participate
in or protesting a mandatory vaccination program (or a lack
thereof), circulating a petition asking for greater safety
protections or discussing vaccinations in connection with work. The
NLRA generally prohibits employers from terminating, disciplining,
threatening or coercing employees who engage or refuse to engage in
such actions. Additionally, prior guidance from Occupational Safety
and Health Administration (OSHA) states that if an employee refuses
to get a vaccine due to a reasonable belief that he or she has a
medical condition creating a real danger of serious illness or
death (e.g., a serious reaction to the vaccine), that employee may
be protected as a whistleblower under Section 11(c) of the
Occupational Safety and Health Act.
Employees may likewise be protected from retaliation under
discrimination laws for raising concerns about a vaccination
program because of medical conditions, religion or other protected
status.
Wage and Hour Considerations
Must employers pay for mandatory vaccinations?
Not under federal law, but perhaps under a particular
state’s law. Currently, all COVID-19 vaccines are being
purchased by the federal government and provided to the public free
of charge. That is expected to remain the case for the time being
in light of the federal government’s purchase of enough vaccine
for 300 million individuals. Yet even if this changes, and
employees were to incur a charge to obtain a vaccine, federal law
would not require employers to pay for mandated vaccinations
(unless, potentially, if the cost of vaccination would cause the
employee’s wages to drop below the federal minimum wage, as
discussed below). However, some states’ laws may require that
employers pay, or reimburse employees, for the cost of mandatory
vaccinations. For example, California law requires that employers
reimburse employees for all necessary and reasonable business
expenses, which would likely apply to the cost of mandatory
vaccinations.
Are employees entitled to reimbursement for mileage or
transportation costs incurred in getting vaccinated?
Generally, no. Under the Fair Labor Standards Act (FLSA),
employers are not generally required to reimburse employees for
business expenses. One exception is that an employer must reimburse
nonexempt employees for the cost of “tools of the trade”
provided by the employee “which will be used in or are
specifically required for the performance of the employee’s
particular work” if failure to do so would reduce pay below
the minimum or overtime wages required by the statute.24For
example, nonexempt delivery drivers may be entitled to
reimbursement for vehicle expenses incurred in making deliveries,
if their pay minus the vehicle expenses would otherwise fall below
minimum wage. However, trips for vaccination would generally be
isolated, infrequent events. Therefore, even if obtaining a
mandatory vaccination were deemed to be a work task, isolated use
by an employee of his or her personal vehicle in getting vaccinated
likely would not make the vehicle a “tool of the trade”
within the meaning of the regulations and, therefore, likely would
not require reimbursement. Further, for employees earning
significantly above minimum wage, it is unlikely that such trips
for vaccination would cause their wages to drop below minimum wage
in any event.
Several states, however, have broader requirements to reimburse
employees for business expenses, including transportation costs.
For example, California requires an employer to indemnify an
employee “for all necessary expenditures or losses incurred .
. . in direct consequence of the discharge of his or her duties, or
his or her obedience to the directions of the employer . . .
.”25In Massachusetts, if an employee who
regularly works at a fixed location is required to report to a
different location, or if an employee is directed to travel from
one place to another during the course of his or her work day, the
employee must be reimbursed for associated transportation
expenses.26In Illinois, expenses “required of
the employee in the discharge of employment duties and that inure
to the primary benefit of the employer” generally must be
reimbursed.27 Such laws may very well require
reimbursement for mileage and other associated costs of getting
vaccinated. Employers considering a mandatory vaccination policy
should review the laws in the states where they operate
carefully.
Under either the FLSA or state law, reimbursement likely would
not be required for expenses incurred by employees obtaining
vaccinations pursuant to an employer’s voluntary
policy.
Do employees need to be paid for time spent getting
vaccinated?
Whether time spent by an employee getting vaccinated must be
treated as compensable under the FLSA likely depends on when the
vaccination occurs and whether vaccination is mandated by the
employer. The U.S. Department of Labor (DOL) has not expressly
opined on whether time spent obtaining a vaccine is compensable.
However, the DOL interprets the FLSA as requiring that, whenever an
employer imposes “special tests, requirements or
conditions,” that an employee must meet (such as physical
examinations, fingerprinting and drug testing), “time he or
she spends traveling to and from the tests, waiting for and
undergoing these tests, or meeting the requirements is probably
hours worked,” regardless of whether such activities occur
during the employee’s normal working hours.28 Vaccination is
arguably a “special requirement” that the DOL would treat
similarly to drug testing and require compensation if the
vaccination were mandatory.29 By contrast, voluntary vaccination
that occurs outside of normal working hours or away from the
employer’s premises would not be compensable under the
FLSA.
If the vaccination occurs on the employer’s premises at a
time when the employee would otherwise be working, the DOL may view
such time as compensable, even if vaccination is voluntary.30
State laws may also require compensation for time spent getting
vaccinated. Similar to the FLSA, state laws may be interpreted to
treat time spent getting mandatory vaccinations as compensable
hours worked. In addition, states can mandate paid time off for
vaccination, whether voluntary or mandatory. For example, New York
now requires all private employers to provide up to four hours of
paid leave for each COVID-19 injection,31and California has
expanded its COVID-19 supplemental paid sick leave law to include
vaccination appointments.32
Are employees entitled to time off because of an adverse
reaction to, or side effect of, a vaccine?
It depends. California’s COVID-19 supplemental paid sick
leave law now includes time spent recovering from vaccine side
effects that prevent the employee from working.33In the
absence of a similar state or local law, if an employee becomes
vaccinated voluntarily outside of the workplace without employer
involvement, then an employee’s entitlement to paid or unpaid
time off to recover from an adverse reaction or side effect would
likely be treated as any other non-COVID-19 related illness for
purposes of any applicable paid or unpaid time off.
If, however, the vaccination was mandated by or obtained at the
direction of the employer, then an employee who needs time off from
work to recover may be entitled to the same rights and protections
as an employee injured on the job, including potentially
workers’ compensation or leave under the employer’s
policies.
Should the value of vaccination incentives be included in the
regular rate when calculating overtime pay?
Perhaps. The FLSA requires that all remuneration be included in
a nonexempt employee’s regular rate for purposes of calculating
overtime compensation unless the remuneration is expressly excluded
by the statue.34 Paid time off is excludable from
the regular rate, but other nondiscretionary incentives (such as
cash or gift cards) intended to induce employees to do something
such as obtain a vaccine are not expressly listed. However, in
December 2019, the DOL issued revised regulations concerning
exclusions from the regular rate in which it provided additional,
specific examples of payments that may be excluded.35An
employer hoping to avoid inclusion of vaccination incentives in the
regular rate should evaluate whether its incentive program would
satisfy the requirements for exclusion found in one of these
regulations. Unless the program satisfies a regulation, the value
of incentives or prizes offered through the program should likely
be included in the regular rate, which would in turn increase the
overtime rate of pay during the applicable time period. The same
may be true under various state laws.
Collective Bargaining Considerations
Is a vaccination program subject to collective bargaining in a
unionized workplace?
Probably. If employees are represented by a union, the NLRA
requires their employer to bargain with the union over the terms
and conditions of employment. Although the National Labor Relations
Board (NLRB) has not weighed in on COVID-19 vaccination policies
specifically, employers of unionized workforces have been required
to bargain over similar policies, such as employer-subsidized flu
vaccinations and flu prevention.36Thus, an employer in a
union environment almost certainly would be required to bargain
over a compulsory COVID-19 vaccination policy, unless the union has
waived the duty to bargain. Waiver can take many forms. For
instance, a collective bargaining agreement may specifically
authorize the employer to implement reasonable workplace safety
rules without bargaining or contain a broad management rights
clause that could be interpreted to provide such authority.
Even if the union waived bargaining over a mandatory vaccination
program, the employer still may be required to provide the union
notice and an opportunity to bargain the effects of the program on
employees, such as whether employees will receive time off to get
the vaccine, who will administer the vaccine and consequences for
employees who refuse the vaccine.
Are there exceptions to the duty to bargain because of the
pandemic?
Maybe. In the latter half of 2020, the Division of Advice (part
of the NLRB’s Office of General Counsel) issued nonbinding
guidance addressing the duty of employers to bargain over policies
related to the pandemic. The Division acknowledged that employers
may unilaterally implement changes to mandatory subjects of
bargaining so long as their actions are reasonably related to the
emergency situation, but they must negotiate over both the decision
(to the extent there is a decisional bargaining obligation, as
discussed in response to the previous question) and its effects
within a reasonable time thereafter.37
It is not clear whether the Board would view implementation of a
vaccination policy in a similar manner, especially given the
foreseeability of vaccines and vaccination programs. Employers
should also anticipate relevant policy changes under the new Acting
General Counsel, who is expected to rescind or modify much of his
predecessor’s guidance. Thus, employers should consider
engaging with their employees’ representatives in advance to
avoid delays or disputes in implementing a vaccination policy.
COVID-19 Safety Regulations
If my employees get vaccinated, are other safety measures such
as masks and social distancing still needed?
Yes. For the time being, employers should continue to implement
other safety measures. Although the current evidence suggests that
COVID-19 vaccines are effective at keeping recipients from getting
sick, the evidence is less clear as to how long vaccine protection
lasts, whether the vaccine protects against variants and to what
extent a vaccinated individual may transmit the virus to others.38
Additionally, non-employees who are not vaccinated may be at the
workplace. For these reasons, it is advisable for vaccinated
employees to still wear face coverings and remain physically
distant from others where possible.39
Employers should also consult applicable state and local laws
and orders, which may require an employer to implement specific
safety measures to control the spread of the virus in the
workplace. To date, most such laws continue to apply, regardless of
the level of vaccination among an employer’s workforce.40
Akin Gump maintains an up-to-date
tracker of such laws in the firm’s COVID-19 resource
center. In addition, employers should continue to pay close
attention to the recommendations of the CDC and other official
public health sources for the most up-to-date guidance on how to
control the spread of the virus in the workplace.
Privacy Issues
Are there any authorization obligations with respect to
employee vaccinations?
Yes. Authorization for use or disclosure of employee vaccination
information may be required under the Health Insurance Portability
and Accountability Act (as amended and including its implementing
regulations, HIPAA)41 or state law. HIPAA restricts use
and disclosure of certain individually identifiable health
information but generally does not apply to employers. However,
HIPAA does apply to employer-sponsored group health plans, meaning
employers still need to contend with HIPAA. If vaccines are offered
as a benefit through a group health plan, employees should be asked
to complete a HIPAA-compliant authorization permitting the plan to
notify the employer that the employee has received the vaccine.
Likewise, to the extent an employer contracts with a third-party
health care provider that is subject to HIPAA to administer
vaccines, employees must generally complete a HIPAA-compliant
authorization to allow the provider to release information about
vaccine status to the employer (unless an exception applies).
States may impose additional authorization requirements. Notably,
HIPAA and state authorization requirements may differ. An employer
should ensure that its form suffices in all applicable
jurisdictions.
Once information about employee vaccination status is in the
employer’s possession, HIPAA no longer applies. Instead,
employers are subject to the ADA’s confidentiality provisions
(discussed below) and applicable state privacy laws. For instance,
California’s Confidentiality of Medical Information Act
(CMIA)42 generally restricts employers from
using, disclosing or knowingly permitting the disclosure of medical
information that the employer possesses pertaining to its employees
without the employee’s CMIA-compliant authorization.
How should records of employee vaccinations be maintained?
Employee medical information obtained in the course of a
vaccination program, such as proof of vaccination and responses to
pre-screening inquiries, is subject to the ADA’s
confidentiality requirements, regardless of whether it is obtained
through a mandatory or voluntary program. Such information must be
collected on separate forms from other employment information and
stored separately from the employee’s ordinary personnel file.
If maintained electronically, employee medical information should
be subject to appropriate security safeguards for electronic
records (e.g., password-protection or encryption). The ADA permits
disclosure of employee medical information only in limited
circumstances to supervisors and managers, first aid and safety
personnel, and government officials investigating compliance with
the ADA. State law may also mandate security safeguards.
Must the identities of employees who have or have not been
vaccinated be kept confidential?
Yes. Asking an employee if he or she has been vaccinated, or
requesting proof of vaccination, is not a disability-related
inquiry. However, EEOC guidance states that an employer’s
confidentiality obligations under the ADA extend beyond information
obtained through a disability-related inquiry, including to medical
information that is voluntarily disclosed by the employee. Aside
from the ADA, certain state laws may require employers to safeguard
employee vaccination status.43 Therefore, employers should avoid
disclosing an individual’s vaccination status beyond those who
have a need to know.
May I disclose to customers, visitors or the public information
about the vaccination status of employees?
Generally no. The ADA prohibits employers from disclosing an
employee’s medical information to a customer, visitor or the
public. However, statistical information about those who have been
vaccinated, without any employee-identifying information, is not
confidential medical information and may be disclosed. Therefore,
for example, the ADA would not prohibit employers from disclosing
or publicizing that “all of its employees have been
vaccinated,” without identifying individual employees.
Employer Liability for Vaccination Programs
Do any federal or state laws protect employers that mandate or
offer the vaccine from liability?
To date, we are not aware of any state laws that expressly
provide immunity to employers who mandate the vaccine. However, on
the federal level, the Public Readiness and Emergency Preparedness
Act (“PREP Act”) authorizes the Secretary of the
Department of Health and Human Services (HHS) to issue declarations
that provide immunity from liability under federal and state law to
“covered persons” for claims of “loss caused by,
arising out of, relating to, or resulting from” the
administration or use of “covered countermeasures” to
diseases, threats and conditions.44The Secretary has
issued a COVID-19 PREP Act declaration that covers countermeasures
to the virus, including the COVID-19 vaccine. Covered persons under
the COVID-19 PREP Act declaration include “program
planners,” which HHS has clarified includes private sector
employers that carry out programs “with respect to the
administration, dispensing, distribution, provision, or use of a
security countermeasure or a qualified pandemic or epidemic
product.” Accordingly, a health care employer or a private
employer that provides a “facility to administer or use”
the COVID-19 vaccine could have immunity under the law. While
private workplace vaccination clinics are still not generally an
option for employers, as vaccination supplies increase employers
may have the opportunity to offer vaccines to their workers. It is
unclear whether PREP Act immunity would extend to a private
employer sponsoring a vaccination clinic run by a third-party
vendor. The PREP Act does not provide immunity to employers who
simply mandate or encourage employees to get vaccinated on their
own without employer involvement (e.g., at a public vaccination
site or from their own health care provider).
Recommendations for Employee Vaccination Programs
The state of the pandemic, and the state of vaccination in the
United States and globally, is rapidly evolving. A plan for
workforce vaccination or timetable for returning employees to a
particular workplace must be sensitive to these changes and how
they impact an employer’s workforce and business. This is not a
situation where a single vaccination program will be appropriate
for all employers. To the contrary, the complex interactions
between federal, state and local laws—in combination with
rapidly changing circumstances and the specific needs of each
business’s workforce, customers and
operations—necessitate that employers carefully consider
potential vaccination programs in consultation with counsel.
Nonetheless, the following are considerations and features that are
generally advisable for COVID-19 vaccination programs:
- Assess the potential impact of
workforce vaccination on your business. What impact would
vaccination of your workforce have on your operations? Would it
enable employees to work more safely and effectively? Would certain
worksites or positions benefit from vaccination more than
others? - Assess the potential reception to
different policies by your employees, customers, visitors, business
partners and the public. In creating a policy, give thoughtful
consideration to feedback on the policy, including objections. - Analyze the laws, regulations and
orders applicable to your program to better understand your options
and obligations in implementing a program, including state and
local laws applicable where your employees work. - Create a written policy. A written
policy will help ensure that employees understand the policy and
that the policy is applied consistently. Such a policy should
clearly define the positions or locations to which the policy
applies, your requirements of affected employees and the
consequences of not satisfying those requirements. The policy
should also include information about the bases on which an
employee may request an accommodation and the process for doing
so. - Create a process for educating
employees about the policy and inviting feedback, including for
employee objections to the policy to be received, thoughtfully
considered and appropriately addressed.
Footnotes
1 See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
2 See https://www.washingtonpost.com/health/2021/02/11/vaccine-supply-biden/.
3 See id.
4 An
executive order in Florida states that COVID-19 vaccines “will
not be mandated” and prohibits businesses “from requiring
patrons or customers to provide any documentation certifying
COVID-19 vaccination or post-transmission recovery to gain access
to, entry upon, or service from the business.” Conspicuously,
the executive order does not expressly prohibit employers from
requiring employees to be vaccinated. See https://www.flgov.com/wp-content/uploads/2021/04/EO-21-81.pdf.
Texas has a similar order. See https://gov.texas.gov/uploads/files/press/EO-GA-35_private_health_information_protection_vaccines.pdf.
5 See http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2021RS/PrintFiles/HB214-int.pdf
(Alabama); https://custom.statenet.com/public/resources.cgi?id=ID:bill:AZ2021000S1648&ciq=ncsl&client_md=202875d30d06911324e00a3a4fb9fa6f&mode=current_text
(Arizona); https://www.cga.ct.gov/2021/TOB/H/PDF/2021HB-05402-R00-HB.PDF
(Connecticut); https://www.ilga.gov/legislation/102/HB/10200HB3682.htm
(Illinois);
https://www.legis.iowa.gov/publications/search/document?fq=id:1211141&q=vaccine
(Iowa); http://www.kslegislature.org/li/b2021_22/measures/sb213/
(Kansas); https://apps.legislature.ky.gov/recorddocuments/bill/21RS/sb98/orig_bill.pdf
(Kentucky);
https://mgaleg.maryland.gov/2021rs/bills_noln/hb/fhb1171.pdf
(Maryland); https://www.revisor.mn.gov/bills/bill.php?view=chrono&b=House&f=HF41&ssn=7&y=2020
(Minnesota); https://www.nmlegis.gov/Sessions/21%20Regular/bills/senate/SB0408.pdf
(New Mexico); https://assembly.state.ny.us/leg/?default_fld=&bn=A04602&term=2021&Summary=Y&Actions=Y&Text=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y#A04602
(New York); http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20INT/SB/SB765%20INT.PDF
(Oklahoma); https://www.legis.state.pa.us/cfdocs/billInfo/billInfo.cfm?sYear=2021&sInd=0&body=H&type=B&bn=262
(Pennsylvania);
http://webserver.rilin.state.ri.us/BillText21/HouseText21/H5989.pdf
(Rhode Island); https://www.scstatehouse.gov/sess124_2021-2022/bills/3511.htm
(South Carolina); https://sdlegislature.gov/Session/Bill/22360/214789
(South Dakota); https://capitol.texas.gov/BillLookup/history.aspx?LegSess=87R&Bill=HB1687
(Texas); http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/House%20Bills/1305.pdf?q=20210301095325
(Washington).
6 See https://www.nysenate.gov/legislation/bills/2019/a11179.
7 See
Isaac Legaretta et al. v. Fernando Macias et al., Case
2:21-cv-00179-MV-GBW (D.N.M. filed Feb. 28, 2021). According to the
plaintiff’s complaint, he is employed at a detention center in
Doña Ana County in New Mexico and is subject to a directive
issued by the Doña Ana County Manager’s Office requiring
all first responders in the county, including “detention
officers and other staff who have face-to-face contact with
inmates,” to get vaccinated as a condition of employment
“unless a reasonable accommodation is approved.” See id.
at Dkt. No. 1 (Complaint) ¶ 3, Exhibit A. He contends that the
FDCA demonstrates a public policy against mandatory vaccination and
that if he “were to be terminated for refusing a vaccine which
federal law requires not to be mandated, it would be a
retaliatory discharge under New Mexico law.” See id. ¶
15. As of publication, the case is pending and no decision on the
merits has been issued.
8 Prior
to making a conditional job offer to an applicant, medical exams
and disability-related inquiries are generally prohibited. After
making an offer but before employment begins, an employer may make
disability-related inquiries and conduct medical examinations,
regardless of whether they are related to the job, as long as it
does so for all entering employees in the same job
category.
9For more
information on the opinions and guidance attributed to the EEOC in
this FAQ, see https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
10 See
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html.
11 See
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
12The
guidance suggests the Job Accommodation Network website as a source
of potential accommodations, https://askjan.org/.
13 See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html.
14See
https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace.
15See
id.
16 See
Fallon v. Mercy Catholic Medical Center, 877 F.3d 487 (3d
Cir. 2017) (dismissing the claims of a psychiatric crisis intake
worker who refused to comply with his employer’s mandatory flu
vaccination policy because of strong personal beliefs); Brown
v. Children’s Hosp. of Phila., 794 Fed. Appx. 226 (3d Cir.
2020) (holding that a hospital employee’s opposition to flu
vaccination because of her “holistic health lifestyle”
was not religious in nature).
17 See
https://www.cdc.gov/vaccines/covid-19/hcp/mrna-vaccine-basics.html.
18See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/viralvector.html.
19 See
https://www.stamfordhealth.org/healthflash-blog/infectious-disease/johnson–johnson-covid-19-vaccine/.
20See
https://www.cdc.gov/vaccines/covid-19/downloads/pre-vaccination-screening-form.pdf.
21 See
id.
22See
https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/.
23 See
https://aboutblaw.com/VnJ.
24 See
29 C.F.R. § 531.35.
25 See
Cal. Lab. Code § 2802.
26See
454 Mass. Code Regs. 27.04(4)(b), (d).
27 See
820 Ill. Comp. Stat. 115/9.5(b).
28 See
https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenEr13.asp;
see also Borne v. AAY Security LLC, No. 1:17-CV-510, 2019
WL 5394010, at *5 (E.D. Tex. Oct. 21, 2019) (DOL determined that
drug testing time was compensable).
29 The
same is likely true in states with laws that mirror the FLSA and
could also be true in states with wage and hour laws that diverge
from the FLSA.
30 See
29 C.F.R. § 785.43 (“Time spent by an employee in waiting
for and receiving medical attention on the premises or at the
direction of the employer during the employee’s normal working
hours on days when he is working constitutes hours
worked.”).
31See
https://legislation.nysenate.gov/pdf/bills/2021/S2588A.
32 See
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB95.
33See
id.
34 See
29 U.S.C. § 207(e).
35 See
https://www.govinfo.gov/content/pkg/FR-2019-12-16/pdf/2019-26447.pdf.
36 See
Virginia Mason Hosp., 357 NLRB 564 (2011); Keeler Die
Cast, 327 NLRB 585, 589 (1999).
37
See, e.g., Mercy Health Partners, 07-CA-258220, Advice
Closing Email dated Aug. 11, 2020, https://www.nlrb.gov/sites/default/files/attachments/pages/node-6409/07-ca-25822008-11-20.pdf.
38 See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
39 See
https://www.osha.gov/coronavirus/safework.
40 An
exception is found in Anchorage, Alaska, which has relaxed its mask
mandate in the workplace for vaccinated individuals who are
separated from the public and unvaccinated coworkers. See https://www.muni.org/covid-19/documents/eo13v4.pdf.
41See
45 C.F.R. pts. 160, 162, and 164.
42 See
Cal. Civ. Code § 56 et seq.
43 See
https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees.
44 The
term “loss” means any type of loss, including (i) death;
(ii) physical, mental or emotional injury, illness, disability or
condition; (iii) fear of physical, mental or emotional injury,
illness, disability or condition, including any need for medical
monitoring; and (iv) loss of or damage to property, including
business interruption loss. However, immunity under the PREP Act
does not extend to claims involving “willful
misconduct.”
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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