United States:
Vaccine FAQs for Manufacturers For
July 07, 2021
Shipman & Goodwin LLP
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As vaccination rates continue to accelerate in Connecticut and New England, manufacturers must now consider the impact of vaccination on their jobs.
April 2021, everyone over the age of 16 in Connecticut is entitled to a COVID-19 vaccine. While not everyone gets a chance in the first two weeks, it is expected that supply will exceed demand during the month of April.
For manufacturers, this should bring some questions and answers into focus. We recently ran a webinar on the subject; Here is our take on some frequently asked questions.
Question: Can employers make the vaccine a condition of employment?
Yes, employers can prescribe the COVID-19 vaccine as per EEOC guidelines. Questions remain, however, as to whether employers can do this now that the vaccine has been approved by the Food & Drug Administration (FDA) through the Emergency Use Authorization. Most employers don’t prescribe the vaccine yet, and as we discussed in the webinar, the safest way right now is to strongly encourage employees to vaccinate. This may change once the vaccines get full approval. In fact, for example, vaccinations may be required when traveling internationally; If this continues for domestic travel, employers will quickly begin prescribing vaccines.
Question: If employers prescribe vaccinations, what accommodation must be provided?
If employers mandate vaccinations, employers must make reasonable arrangements under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
If an employee refuses to be vaccinated, check to see if the employee has a qualified disability, if the employee has a sincere religious belief, and if refusal to be vaccinated poses a direct threat to the workplace. To assess whether refusal to vaccinate a worker may pose a direct threat, employers should consider: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminent risk of possible harm. Also, before dismissing an employee for refusing to vaccinate, make sure you participate in the interactive process to determine if adequate accommodation (such as continued remote work, additional PPE, etc.)
Question: Do employers have to give employees paid time off (PTO) to receive vaccines?
If vaccination is required, then yes. If vaccination is voluntary, then no. However, providing a PTO for vaccination can be beneficial for an employer. It can encourage employees to get vaccinated and it shows that the employer cares about a safe job for their employees. In addition, vaccination can easily be planned in advance. Some states, like New York, mandate a paid time off for vaccines, so keep the changing guidelines in mind here.
Employers can also choose to create other incentives to encourage workers to get vaccinated: coverage of the cost of the vaccination (if any), additional payment, or a cash incentive. Use caution, however – providing vaccination incentives can open employers to ADA compliance issues, as those unable to get vaccinated because of a disability or genuine religious belief may not get the same benefits.
Question: Can employers ask employees to provide proof of vaccination?
Yes, an employer can ask the employee to provide proof of vaccination. However, employers must ensure that they do not obtain medical information about a disability and must keep all employee medical information confidential.
Question: What if an employer doesn’t prescribe a vaccination?
If an employer does not mandate vaccination, the employer should continue to do what they do: take precautions such as wearing masks, social distancing, isolation if a person is exposed to COVID-19, and remote working where possible. These are good practices indeed, even in a vaccinated workplace.
We are in a challenging phase of the pandemic. Vaccines are here, but not yet widespread, and infection rates in the border triangle are among the highest in the country. Continuous vigilance in fighting infection is strongly recommended.
Originally published on 04/13/2021.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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