The COVID-19 Vaccine Rollout: What Employers Want To Know – Coronavirus (COVID-19)
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Key Points
- To account for legal developments since our last FAQ concerning
employer COVID-19 vaccination policies, we provide updated answers
to questions and address additional questions about discrimination,
wage and hour, collective bargaining, safety, privacy and general
liability considerations, and offer recommendations for employee
vaccination programs. - In particular, we discuss recent guidance and opinions from the
Equal Employment Opportunity Commission, the U.S. Department of
Labor and the U.S. Department of Justice on various topics.
With widespread vaccine eligibility and availability in the
United States, and COVID-19 case counts rising with the spread of
the Delta variant of the SARS-CoV-2 virus, 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 reflect
changes to regulations and updates to guidance from government
agencies since the publication of our prior FAQ on April 6, 2021.
We address many of the legal issues that employers should take into
account as they evaluate the role of vaccinations in their return
to office 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 private employers require employees to get vaccinated for
COVID-19?
In most states, subject to exceptions under antidiscrimination
laws, an employer’s basic right to set the terms and conditions
of employment at its workplace gives it the right to require that
employees receive a COVID-19 vaccine as a condition of initial or
continued employment.1 The U.S. Department of Justice (DOJ)
recently issued an opinion stating that the Food, Drug and Cosmetic
Act does not prohibit employers from mandating vaccination for
COVID-19, even while such vaccinations are available only through
Emergency Use Authorizations (EUA).2 Further, prior to
the DOJ’s opinion, a lawsuit challenging a mandatory
vaccination program was dismissed by the U.S. District Court for
the Southern District of Texas.3
States may impose their own restrictions, however. In May,
Montana passed a law prohibiting employment discrimination based on
a person’s vaccination status,4 and Oregon prohibits certain private
employers from mandating COVID-19 vaccinations as a condition of
employment.5 A number of other states have issued
executive orders or passed laws prohibiting businesses from
requiring customers to prove that they are vaccinated in order to
access services, but have stopped short of prohibiting private
employers from mandating vaccination.6 Because the debate
over these issues is ongoing at the state and local level,
employers should assess recent legislative developments before
implementing a mandatory vaccination policy in a particular
jurisdiction.
In considering whether to implement a mandatory vaccination
program, employers also 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 employees, or ask employees
questions that are likely to elicit disability-related information,
where the exams or questioning are “job-related and consistent
with business necessity.”7 In guidance published in December
2020 and updated in May 2021, the Equal Employment Opportunity
Commission (EEOC) stated that, although information about an
employee’s vaccine status is subject to the ADA’s
confidentiality requirements, asking employees whether they have
been vaccinated, or requiring proof of vaccination, is not a
medical examination within the meaning of the ADA.8 Therefore, the ADA
does not generally preclude employers from implementing a vaccine
mandate for its workforce.
Still, complications may arise to the extent that an employer
were to provide vaccinations on-site or otherwise administer a
vaccination program. In order to obtain a vaccine, employees need
to answer screening questions for “contraindications”
(i.e., medical conditions that increase the risk for a serious
adverse reaction).9 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. Therefore, if the employer is involved in administration
of mandatory vaccines, the employer must be able to show that
requiring employees to be vaccinated 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.”10 To assess the threat, 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.
Additionally, an employer must engage in an interactive process
with employees who claim that a disability prevents them from
receiving the vaccine to explore accommodation alternatives to
being vaccinated. For example, the EEOC believes that remote work
may be a reasonable accommodation when a direct threat justifies a
mandatory vaccination policy. Employers must likewise engage in an
interactive process if a vaccinated employee requests an
accommodation because they suffer from a disability that presents a
heightened risk of severe illness from COVID-19 despite being
vaccinated.
How does the Pregnancy Discrimination Act apply to vaccination
of employees?
According to the Centers for Disease Control and Prevention
(CDC), pregnant individuals are at increased risk for severe
illness from COVID-19.11 While there is limited data at
this time about the safety of COVID-19 vaccines for people who are
pregnant, recently leading experts in maternal health have been
recommending that pregnant women become vaccinated.12
Nonetheless, pregnant employees who are unwilling to receive the
vaccine may seek an exception from a mandatory vaccination
policy.
The federal Pregnancy Discrimination Act (PDA) generally forbids
discrimination based on pregnancy with respect to any aspect of
employment. This means that when an employer grants an exception to
a policy for a nonpregnant employee who is similar to a pregnant
employee in his or her inability to work, the employer must either
grant the exception for the pregnant employee or have a legitimate
and nondiscriminatory explanation for treating the pregnant
employee less favorably. In the context of a mandatory vaccination
policy, an employer should not treat pregnant employees less
favorably than other employees seeking to be excused from a
mandatory vaccine. Indeed, certain pregnancy-related medical
conditions may qualify as disabilities under the ADA entitling the
employee to a reasonable accommodation. The PDA does not require
employers to treat pregnant employees more favorably,
however. For example, if the employer is requiring employees with
medical conditions to provide a health care provider’s opinion
before excusing them from the vaccine requirement, an employer may
impose the same requirement on pregnant employees who do not wish
to become vaccinated.
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.13
Therefore, 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.”14
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 3rd
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.15 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 the Genetic Information Nondiscrimination Act apply to
vaccinations of employees?
No. 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’s guidance explains that because
the pre-vaccination medical screening questions that accompany
receipt of any of the currently available vaccines do not ask about
an employee’s genetic information, an employer may ask these
questions without violating GINA.16 However, as explained below, the
same screening questions are viewed by the EEOC as eliciting
genetic information about an employee in the form of family medical
history when they are asked of the employee’s family
member.
May employers offer employees incentives to get
vaccinated?
Yes. The restrictions in the ADA and GINA regarding medical and
genetic inquiries are inapplicable when an employer’s
vaccination program is voluntary. The EEOC distinguishes between
incentives offered to entice employees to provide proof of
vaccination from a third party and incentives offered to employees
for voluntarily receiving a vaccination administered by the
employer or its agent. For the former, because requesting proof of
vaccination is not a disability-related inquiry, employers may
offer incentives to encourage employees to provide proof that they
have been vaccinated by an independent provider. Employers may also
offer incentives to employees to receive a vaccination administered
by the employer or its agent. However, because vaccine recipients
must answer pre-vaccination disability-related screening questions,
employers sponsoring their own vaccination programs may not make an
incentive “so substantial as to be coercive.”17
The EEOC guidance states that “a very large incentive could
make employees feel pressured to disclose protected medical
information.”18
May employers offer employees incentives for their family
members to get vaccinated?
It depends on whether the vaccination is administered by the
employer (or its agent) or an independent provider.
GINA prohibits employers from offering incentives in exchange
for receipt of genetic information.19 The EEOC’s
guidance states that an employer that administers the vaccination
would receive the family member’s answers to screening
questions and would therefore receive “genetic information in
the form of family medical history of the
employee.”20 Accordingly, “the employer
may not offer incentives in exchange for the family member getting
vaccinated.”21
By contrast, if the vaccination were administered by an
independent provider, then the employer would not receive medical
information about the family member, and GINA would not be
implicated.
Does GINA permit employers to offer vaccinations to
employees’ family members?
Yes. The EEOC guidance states that, so long as the employer (a)
does not require that an employee’s family members get
vaccinated or punish an employee if his or her family members
decide not to get vaccinated, (b) ensures that it obtains
“prior, knowing, voluntary, and written authorization from the
family member before the family member is asked any questions about
his or her medical conditions,” and (c) ensures that all
medical information obtained voluntarily from family members during
the screening process is used only for purposes of providing the
vaccination, is kept confidential, and is not provided to managers,
supervisors, or others who make employment decisions for the
employees, then GINA permits an employer to offer vaccinations to
an employee’s family members.22
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, 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 unless an employer can
establish a countervailing interest, such as the safety of other
workers or customers. Boycotting or protesting a mandatory
vaccination policy may be considered “concerted activity”
under the NLRA. However, the National Labor Relations Board (NLRB)
has signaled that it may be permissible in some circumstances for
employers to place employees on leave, or take other adverse
actions, until they comply with such a policy.23
Employee protests regarding vaccination also may raise
retaliation concerns. For example, prior guidance from the
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. However, these claims generally require that the employer
take adverse action “because of” protected activity, and
thus employees may not be able to assert retaliation claims under
Title VII, the ADA or GINA if the employer applies its vaccination
policy consistently to all employees.
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.
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.24
For 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, should 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 . . .
.”25 In 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.26 In 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 Employers considering a mandatory
vaccination policy should carefully review the laws in the states
where they operate to determine what associated costs, if any, must
be reimbursed.
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.
Must employees be paid for time spent getting vaccinated?
The FLSA is unclear as to whether employees must be compensated
for time getting vaccinated. 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 If
the employer mandates vaccination, employees may argue it is a
“special requirement” similar to drug testing and should
be compensated.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.
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,30 and California
has expanded its COVID-19 supplemental paid sick leave law to
include vaccination appointments.31
Finally, OSHA has issued an Emergency Temporary Standard (ETS)
that applies to work settings where employees provide health care,
or health care support, services as defined in the ETS. The ETS
requires that covered employees receive “reasonable time and
paid leave (e.g., paid sick leave, administrative leave) . . . for
vaccination and any side effects experienced following
vaccination.”32
Are employees entitled to time off because of an adverse
reaction to, or side effect of, a vaccine?
It depends. OSHA’s ETS requires covered employers to provide
paid leave for recovery from vaccination side effects.33
California’s COVID-19 supplemental paid sick leave law now
includes time spent recovering from vaccine side effects that
prevent the employee from working.34 In the absence of
a similar state or local law applicable to an employer not covered
by OSHA’s ETS, if an employee becomes vaccinated voluntarily
outside of the workplace without employer involvement, then a
vaccine side effect likely could be treated in the same manner as
any other non-COVID-19-related illness for purposes of applicable
paid or unpaid time off.
If, however, 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.
Under the FLSA, must the value of vaccination incentives be
included in the regular rate when calculating overtime pay?
Probably not. The DOL has published guidance in which it takes
the position that vaccination incentives are payments “in the
nature of gifts for special occasions” that may be excluded
from the regular rate.35 State law may vary.
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 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.36 With new requirements that federal
employees and onsite contractors (many of whom belong to a union)
attest to their vaccination status, the NLRB may excuse private
employers from bargaining vaccination programs in the future.
However, for the time being, an employer in a union environment
still should expect to bargain a 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 the terms and conditions of
employment so long as their actions are reasonably related to an
emergency, but they must negotiate the effects of their actions
prior to implementing the changes.37
The NLRB’s new General Counsel is expected to rescind this
guidance, and it is not yet clear whether new guidance will excuse
vaccination programs from the duty to bargain. While the NLRB may
ultimately view the Delta variant as an emergency that supersedes
the duty to bargain a vaccination policy, employers in union
environments should expect to bargain such policies for the time
being.
COVID-19 Safety Regulations
If my employees get vaccinated, are other safety measures such
as masks and social distancing still needed?
It depends on the state of the pandemic in the areas where
employees work and the activities occurring at the particular
workplace. In response to spread of the Delta variant, on July 27,
the CDC again updated its guidance concerning whether fully
vaccinated individuals should wear masks indoors in public. The CDC
currently recommends that fully vaccinated individuals wear masks
indoors in public when “in an area of substantial or high
transmission.”38 The CDC provides information about
the level of community transmission by county.39 Previously, the
CDC had advised that fully vaccinated people could “resume
activities without wearing a mask or physically distancing, except
where required by federal, state, local, tribal, or territorial
laws, rules, and regulations, including local business and
workplace guidance.” In response, on June 10, OSHA updated its
guidance on mitigating and preventing the spread of COVID-19 in the
workplace to advise that unless otherwise required by law,
“most employers no longer need to take steps to protect their
fully vaccinated workers who are not otherwise at-risk from
COVID-19 exposure.”40 Employees “otherwise
at-risk” include those with immunocompromising conditions.41
OSHA has yet to update its guidance in light of the CDC’s
revised recommendations for fully vaccinated individuals.
Protective measures, including masks and social distancing, should
be maintained for employees who are not fully vaccinated.42
For employers covered by OSHA’s COVID-19 ETS, otherwise
applicable personal protective equipment (PPE) and physical
distancing and barrier requirements do not apply to fully
vaccinated employees “[i]n well-defined areas where there is
no reasonable expectation that any person with suspected or
confirmed COVID-19 will be present.”43 If those
conditions are not satisfied, then an employer must provide, and
fully vaccinated employees must use, PPE under the same
circumstances as other employees, and, like other employees, fully
vaccinated employees must be separated from all other people by at
least six feet (or as far apart as is feasible).44 If six feet of
separation is not feasible, then the employer must install
cleanable or disposable solid barriers at each fixed work location
outside of direct patient care areas or resident rooms, unless it
is not feasible to do so.45
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. Akin Gump maintains an up-to-date
tracker of such laws and orders 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
Does HIPAA apply to employee vaccinations?
Potentially. Authorization for use or disclosure of employee
vaccination information may be required under the Health Insurance
Portability and Accountability Act (HIPAA). HIPAA restricts use and
disclosure of certain individually identifiable health information.
It generally does not apply to employers. However, HIPAA does apply
to employer-sponsored group health plans, meaning employers may
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 to administer vaccines, employees must
generally complete a HIPAA-compliant authorization to allow the
provider to release information about vaccine status to the
employer.
Once information about employee vaccination status is in the
employer’s possession, HIPAA no longer applies to the employer
and its maintenance of such information.
Must an employee’s vaccination status be kept
confidential?
There is conflicting authority. In December 2020, the EEOC
released guidance clarifying that an employer’s request for an
employee’s vaccination status was not a disability-related
inquiry and that COVID-19 vaccination itself is not a medical
examination. Thus, a request by an employer for vaccination status
does not implicate the ADA.
In its updated guidance, the EEOC takes the position that the
ADA’s confidentiality requirement applies to information about
an employee’s vaccination status, regardless of how such
information is obtained.46 However, the EEOC’s position
is at odds with case law holding that the ADA’s confidentiality
provisions apply only to information obtained through a
disability-related inquiry or medical examination.47
Employer Liability for Vaccination Programs
Do any federal or state laws protect employers from liability
if they mandate vaccination or offer a COVID-19 vaccine to their
employees?
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.48 The 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).
OSHA recently stated that it will not require an employer to
record worker side effects from a COVID-19 vaccine through May
2022, whether or not the employer mandates the vaccine.49
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 a vaccination policy on your
business. What impact would such a policy have on your operations?
Would it enable employees to work more safely and effectively?
Would certain worksites or positions benefit from a policy 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 As
explained below, an employer’s vaccination program is likely
subject to collective bargaining in a unionized workplace, and the
terms of a collective bargaining agreement could restrict an
employer’s ability to mandate vaccination.
2 See
Whether Section 564 of the Food, Drug, and Cosmetic Act
Prohibits Entities from Requiring the Use of a Vaccine Subject to
an Emergency Use Authorization, Memorandum Opinion for the
Deputy Counsel to the President (July 6, 2021), https://www.justice.gov/olc/file/1415446/download.
3 See
Jennifer Bridges v. Houston Methodist Hosp., Case
4:21-cv-01774, Doc. 18 (S.D. Tex. June 12, 2021).
4 See https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf.
5 See
https://www.oregon.gov/boli/workers/Pages/covid-vaccine.aspx
(explaining that, under Oregon law, people licensed or certified to
provide health care and employees of a health care facility, a
licensed health care provider, or a clinical laboratory may not be
subject to mandatory vaccination).
6 See,
e.g., Alabama https://legiscan.com/AL/text/SB267/2021,
Arizona https://azgovernor.gov/sites/default/files/eo_2021-09.pdf,
Florida
https://www.flgov.com/wp-content/uploads/2021/04/EO-21-81.pdf,
Iowa
https://www.legis.iowa.gov/legislation/BillBook?ba=HF%20889&ga=89,
and Texas
https://gov.texas.gov/uploads/files/press/EO-GA-35_private_health_information_protection_vaccines.pdf.
7 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.
8 For
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.
9 See
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html.
10 See
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
11 See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html.
12 See
id.;
https://www.cnn.com/2021/07/30/health/pregnant-covid-vaccine-recommendation-wellness/index.html.
13 See
https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace.
14 See
id.
15 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).
16 See
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
17 See
id.
18
Id.
19 See
id.
20
Id.
21
Id.
22
Id.
23 See
NLRB General Counsel Memorandum 20-14, available at
https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.
24 See
29 C.F.R. § 531.35.
25 See
Cal. Lab. Code § 2802.
26 See
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
https://legislation.nysenate.gov/pdf/bills/2021/S2588A.
31 See
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB95.
32 See
29 C.F.R. § 1910.502(m).
33 See
id.
34 See
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB95.
35 See
https://www.dol.gov/agencies/whd/flsa/pandemic#23.
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;
see also Kiro, Inc., 317 NLRB 1325, 1327 (1995) (“An
employer has an obligation to give a union notice and an
opportunity to bargain about the effects on unit employees of a
managerial decision even if it has no obligation to bargain about
the decision itself.”).
38 See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.
39 See
https://covid.cdc.gov/covid-data-tracker/#county-view.
40 See
https://www.osha.gov/coronavirus/safework?utm_medium=Email&utm_source=SFMC&utm_campaign=&utm_content=.
41 See
id.
42 See
id.
43 See
29 C.F.R. § 1910.502(a)(4).
44 See
id. at § 1910.502(f), (h).
45 Id.
at § 1910.502(i).
46 See
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
47
See, e.g., EEOC v. Thrivent, 700 F.3d 1044 (7th Cir.
2012); Franklin v. City of Slidell, 936 F. Supp. 2d 691
(E.D. La. 2013); Heston v. Underwriters Lab., Inc., 297 F.
Supp. 2d 840 (M.D.N.C. 2003).
48 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.”
49 See
https://www.osha.gov/coronavirus/faqs#vaccine.
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