As the COVID vaccine is rolled out, many employers are asking a big question: Can we mandate a COVID vaccine in order for employees to return to their physical place of work? The answer will often be “yes,” although there are significant restrictions and qualifications.
EMERGENCY USE AUTHORIZATION
COVID vaccines are being rolled out under an Emergency Use Authorization (EUA), rather than through the regular Food and Drug Administration (FDA) approval process. This path creates a question about whether employers can institute a COVID vaccine mandate as a condition of employment because the EUA process moves much fast in comparison to the time it would take if these COVID vaccines were subject to standard FDA approval. Under an EUA, recipients of the vaccine must be counseled that they have the “option to accept” the vaccine, as well as told the “consequences for refusal.” At this point, it may be enough for an employer to counsel employees that one of the “consequences for refusal” may be loss of hours or potentially even exclusion from the worksite. According to a blog post from Faegre Drinker Biddle & Reath LLP, there is at least one case, in New Mexico, that is testing the boundaries of a COVID vaccine mandate under the EUA. It is likely that there will be more tests in the future.
VACCINES CAN BE REQUIRED – WITH EXCEPTIONS
According to the Equal Employment Opportunity Coalition (EEOC), a COVID vaccine mandate is not in and of itself a medical exam, and therefore does not implicate potential Americans with Disabilities Act (ADA) issues, and may be a work qualification for the health or safety of the workplace. However, if the employer wants to offer the vaccine on-site, asking the prescreening questions could be considered a medical exam, because the questions could uncover a disability. Generally, it will create less liability for the employer to institute a COVID vaccine mandate, but have the employees go to a third-party, off-site provider to receive the vaccine.
Once the employer begins requiring the vaccine, if the employees get vaccinated during the time they would ordinarily be working, the employer needs to pay for that time, even if the employee receives the vaccine off-site. However, if the employer merely requires the vaccine, but the employee receives the vaccine off-site and on their own time, the employer does not have to pay the employee for the time it took to get vaccinated.
Finally, if the employer is requiring proof of vaccination (for example, review of the employee’s COVID vaccine card), the employer should not ask follow-up questions to determine why the employee did not receive the shot, since that could also potentially uncover disabilities.
EXEMPTIONS TO A COVID VACCINE MANDATE
There are two main exemptions to an employer’s COVID vaccine mandate. First, if an employee has a sincere religious belief, practice, or observance, the employee may propose a reasonable accommodation in lieu of receiving a COVID vaccine. The employer does not have to provide the requested accommodation if it would pose an undue hardship to the business, meaning something more than a nominal cost. The employer may offer another accommodation, as well – the employer does not have to provide the employee’s preferred accommodation solely because the employee asked for a specific accommodation.
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Second, if the employee provides a disability-related or medical reason for not getting the vaccine, the employer should again evaluate the requested accommodation. If the proposed accommodation would cause significant difficulty or expense, (in light of the nature and cost of the accommodation, the facility and employer’s financial resources and the number of employees, and the effect on operations) then the employer does not have to provide the accommodation.
In either case, potential accommodations could include additional personal protective equipment, alternative shifts, off-site work (if available), leave, modifying job duties, and temporarily reassigning the employee.
Bureau of Labor and Industries (BOLI) and the EEOC allow employers to offer incentives for getting vaccinated, but these incentives should, in general, be non-discriminatory. That means that the incentives should not result in a pay disparity between vaccinated and non-vaccinated individuals and should not require information that is otherwise protected, such as personal health information.
Under the Trump Administration, the EEOC proposed rules allowing small incentives for COVID vaccine, such as water bottles or small gift cards from employers. As part of a broader effort to re-orient several federal agencies, these rules were pulled back by the Biden administration. More rule making around vaccine incentives is expected, but as of this writing, no rules or guidance materials have been published by the Biden Administration.
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BOLI has specifically approved a system that would allow employers to provide a bonus to all employees once a certain threshold of vaccines has been reached. Other options would be providing a certain amount of paid leave for employees who receive the vaccine, and also for employees who provide documentation of an exemption. Fred Meyer offers a $100 incentive to employees who get vaccinated, and also for those with an exemption who complete a safety course.
Biden recently announced a paid leave program to allow for employees to qualify for paid leave while they get vaccinated and recover from any COVID vaccine side effects. The IRS should reimburse smaller employers for this cost, but as this is a recent development, no regulations or guidance are yet available.
Very few employers are currently planning on requiring a COVID vaccine as a condition of returning to or continuing employment. If you are one of those employers, it is important to work with an employment law attorney on forming a COVID vaccine agreement that lays out what is required, how the program will be implemented, how to handle exemptions, and whether incentives will be instituted.
Alicia is a business transactions attorney with experience in highly regulated industries. She works with a wide range of marijuana and hemp clients providing strategic counsel and unique insights. You can contact Alicia Altenau at email@example.com 503-488-5424.
This article originally appeared on Green Light Law Group and has been reposted with permission.