You can find a copy of this customer notification HERE.
With the introduction of COVID-19 vaccines [hopefully] Employers are gaining momentum and need to consider a variety of issues in deciding on an appropriate response, if any. There are a number of areas of law that come into play, such as data protection law, mitigation / allocation of commercial contracts, labor law, and the obligations of the Health Insurance Portability and Accountability Act (HIPAA).
As our guidelines evolve based on medical and regulatory developments, this notice contains suggestions for employers based on what we know today. The following is based on US law only; If / when other countries are relevant to you, please let us know and we will receive relevant advice.
We look forward to working with each of you to develop and modify a strategy that best suits your circumstances.
Can I request that employees be vaccinated?
Yes, probably subject to exceptions due to a disability (e.g. asthma) or a religion that we detailed for you in December 2020 (preparation for exceptions to your company’s COVID-19 vaccination program). You should also expect some objections from those who philosophically oppose, from those who currently do not have access to the vaccine, and from those who just don’t want to be bothered. The courts have not yet ruled on the COVID-19 vaccine issue, although they do authorized compulsory examination in other contexts. Therefore, while we don’t know for sure given the political considerations, security, and position of the Equal Employment Opportunity Commission (EEOC), we would expect most courts to allow such a requirement. In imposing such a requirement, you should expect legal challenges, which may include claims for damages from employees if / when someone has (or alleges) an adverse reaction. You should definitely wait until vaccines are generally available before making such a request. There is currently no legal obligation for employers to insist on such vaccines.
If I have such a requirement, can I terminate someone who refuses without medical or religious justification?
At this time, it seems like you could do so, but expect a legal challenge. There may also be new laws or regulations that do the opposite.
If I have such a requirement, can I terminate someone who refuses for medical or religious reasons?
Maybe according to the EEOC. The American With Disabilities Act (ADA) allows an employer to exclude a person from work if the person poses a “direct threat” to the health and safety of others if the unvaccinated person cannot be accommodated. For example, an employer may be able to host such an employee by letting them work remotely. Similarly, and as detailed in our December 15 warning, once an employer is informed that an employee’s sincere religious belief, practice, or compliance prevents the employee from to obtain vaccination, practice or compliance unless it would constitute undue hardship within the meaning of Title VII of the Civil Rights Act.
Can I only need it for certain jobs where people are in close proximity?
Unclear at the moment, but probably not advisable. This leads to claims related to prohibited discrimination – e.g. B. Race, religion, gender, etc. If you do this, there must be a very clear justification, which is consistently implemented, why the specified jobs involve a higher risk of infection.
Do I have to have the vaccinations on site?
No. If you do, see below for contractual considerations. You’ll also need to check your state and local laws and regulations about who – nurse, medical assistant, etc. – can administer shots. You should also check with your insurance advisor.
Can I encourage employees to get vaccinated, with extra free time, bonuses, loot, etc.?
Yes, and several companies already do, but the first thing you should do if you do is to make it clear that they should consult their own doctors as to the suitability for each of them and that the decision and the risk involved is theirs alone. Written consent and acknowledgment of the risk according to the example below is required. You shouldn’t have to consider paying for the vaccine yourself, as it’s free for all Americans. Second, you should consider the quality of the swag so that you don’t accidentally break the ADA. The proposed regulations for wellness programs recently published by the EEOC must be taken into account (https://www.eeoc.gov/regulations/wellness-rulemaking), since a COVID-19 vaccination program is definitely considered a wellness program due to questions about wellness programs. Program can be viewed medical history. The proposed regulations stipulate that employers are generally not allowed to offer more than “de minimis incentives” such as a (very) small gift card or a water bottle to encourage employees to participate in the wellness program.
Manuals and other communications should be kept factual and avoid “editorial comments” on the safety and / or desirability of the vaccine.
Do I need to provide paid off-site vaccination time off?
This is covered by the laws of each state, but you should assume that is OK. If the vaccine is required by the employer, such payment is also required.
What if a third party comes into our facility to vaccinate those who want it? Am i clear
No. The third party’s actions are likely to be viewed as your actions when something goes wrong. Your contract with the third party must cover the following points:
- Obtaining express written consent and recognition of the risk;
- Avoiding opinions about the effectiveness or safety of the vaccine;
- Use of qualified personnel and unadulterated material;
- Compensation for claims made by employees or other third parties in connection with vaccine administration;
- Maintaining adequate liability insurance; and
- Proper handling and security of personal data in accordance with applicable data protection law and HIPAA.
What should I do with information that states who has and has not been vaccinated?
You should treat it in the same way as you would other employees’ medical information. While in many (and possibly most) cases, the information is not covered by HIPAA regulations, it may be subject to other state and federal privacy and employment laws and regulations, including the American with Disabilities Act, and should be appropriately secured will . It must not be communicated to anyone – customers, other employees, insurance carriers, state health authorities or others – without the express written consent of the employees. The intended disclosure should be included in any solicitation for approval of the vaccine itself and should be discussed with an attorney when establishing a vaccination policy or program.
The following is a language used by the State of Florida for this and related purposes:
- On behalf of myself, my heirs and personal representatives, I hereby release the State of Florida, the Florida Department of Health (DOH) and its employees, agents, successors, departments, affiliates, subsidiaries, officers, directors and contractors and employees from all known or any unknown liabilities or claims arising out of, in connection with, or in any way related to the administration of the vaccine listed above.
- I acknowledge that: (a) I understand the purposes / benefits of Florida SHOTS, Florida’s Vaccination Registry, and (b) DOH contains my Florida SHOTS personal vaccination information and my personal vaccination information is shared with the Centers for Disease Control (CDC)) or other federal agencies.
…
- I confirm receipt of the data protection declaration.
What if customers insist that I only send them vaccinated technicians and other staff?
Unclear at this point and shouldn’t be a problem until vaccines become more widely available. However, data protection regulations currently require not to send such persons without their express written consent, which would mean an extension of the language mentioned above. Otherwise, their presence can be seen as an implicit disclosure of their vaccine.
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