(Portions of this guidance, including offering employee incentives to get vaccinated, and whether you should document employees’ vaccination status, were updated on 6/4/21)
With Covid vaccines now being distributed widely and available to practically all individuals across the U.S., it is as important as ever that employers understand their rights and obligations surrounding vaccines.
Of course, everyone is anxious to return to “business as usual” as soon as possible, so it’s no surprise that the question on every employer’s mind right now is “Can I require my employees to get the COVID-19 vaccine?”
Ultimately, the answer to this question isn’t as much about what you can do, but rather what you should do. While employers can require vaccines — whether a Covid vaccine or a flu shot — in most cities/states, the potential repercussions, both legally and practically, are severe enough that you definitely want to think twice before enforcing this type of policy.
To help you make an informed determination about how best to handle the subject of the Covid vaccine with your employees, we answer some of the most common vaccine-related questions we’re hearing in the CEDR HR Solution Center below.
This section updated June 4, 2021
Even though guidance released by the EEOC in the last week of May 2021 indicates that incentives for taking the vaccine are OK to offer under specific circumstances, current guidance on how employers should handle the COVID-19 vaccine falls in line with existing guidance around the flu vaccine. You are able to administer vaccines at the workplace, ask for proof of vaccination, and even mandate vaccines. However, there is substantial risk in making a vaccine mandatory, and it is unlikely you could let someone go for not getting vaccinated.
If you are a CEDR Member, contact us before taking any action against an employee who doesn’t get the vaccine, or to discuss any vaccine-related questions you may have.
If you are not a CEDR Member, you can crowdsource answers to any questions you may have from CEDR’s HR experts + 9000 of your peers and colleagues in our private, professional Facebook Group, HR Base Camp.
From the ADA:
At this time, we are not aware of any federal or state requirements to mandate the COVID vaccine in the workplace. However, there are some new local laws that require employers to document their employees’ COVID-19 vaccination status.
Our Compliance Team is keeping a close eye on developments surrounding the vaccine to see if any potential changes in recommendations arise that apply to employment regulations. We’ll keep you posted if anything changes.
You can technically require employees to get the COVID vaccine without violating federal employment discrimination laws. However, this does not actually mean you can freely let an employee go if they don’t get vaccinated. We recommend that you encourage employees to obtain the vaccine, rather than tie it to an employment policy.
Even with a “mandatory vaccine” policy, you need to account for employees potentially declining the vaccines due to sincerely-held religious beliefs or medical concerns. If someone raises that type of concern, you need to look at whether you can accommodate having an unvaccinated person in the workplace.
We talk more in depth about accommodations and potential reasons why employees could exempt themselves from a vaccine mandate later in this blog.
Ultimately, however, we believe you’d be hard pressed to show that getting the vaccine is an absolute requirement to be able to work at your business. The fact that your own and thousands of other businesses have been open during the pandemic in the absence of vaccines, the data showing that PPE can be quite effective, and the fact that you can regularly expect patients/customers to be there even if unvaccinated, would go against any claim that it’s too dangerous for an employee to refuse the vaccine.
From the ADA:
This section updated June 4, 2021
The answer to this question depends on a variety of factors. There are a handful of new laws across the country that offer paid time off to employees to get the vaccine during their workday (“Vaccine PTO”).
Through the end of September 2021, employees can use available FFCRA leave for their vaccine appointments. However, this benefit would only apply if you have chosen to provide your employees with FFCRA benefits this year.
Beyond FFCRA, there are also some cities, counties and states, particularly in California and New York, that are requiring employers to provide Vaccine PTO. So, double check your local laws before you deny a request for paid time off to get the vaccine or reach out to us if you are a CEDR member.
Even if you are not in a location that requires Vaccine PTO, you may want to create a similar benefit to encourage your employees to get vaccinated.
If a Vaccine PTO law does not apply to you, then the answer to this question hinges on whether or not you are requiring your employees to be vaccinated as a condition of continued employment.
If you are not requiring your employees to get vaccinated as a condition of their employment and are allowing individuals to opt out of vaccination you do not need to pay for their vaccine to be administered or for any time off they might need to either get the shot(s) or to recover from any potential side effects resulting from the vaccine, other than allowing them to use paid time off in accordance with your policies.
You will likely want to offer to pay for your team to get vaccinated, though, as a means of encouraging them to get vaccinated and to make it as easy as possible for them to get a vaccine once it is made available to them.
If you are requiring your employees to get a Covid vaccine as a condition of their continued employment with your business then you will need to pay for any costs your employees incur associated with getting the vaccine, as well as for the time they spend getting vaccinated.
Additionally, any adverse effects an employee experiences as a result of getting a mandatory vaccine will likely be compensable under your workers’ compensation insurance. You will also want to consider offering paid time off to recover from side effects of the vaccine as a matter of attending to employee morale.
From the ADA:
For most employers, the right answer to this question is likely in line with EEOC guidance on this topic: you should consider simply encouraging employees to get the flu and COVID vaccines rather than requiring them to get vaccinated.
There are a number of things you can do as an office manager to combat vaccine skepticism and encourage vaccination of your team members without requiring them to get the shot. Here are a few ideas:
Inform your employees about the importance of being vaccinated and the safety of the vaccine during team meetings, and provide them with convenient ways to get more information, should they need it. The CDC has a helpful page on Talking to Recipients about COVID-19 Vaccines here.
The best way to illustrate a behavior you would like to see from your team is by modeling that behavior from the top down.
Talk openly about your plans to get vaccinated. Take photos or videos of yourself and your owmer doctors getting vaccinated, then send them in an email to your entire team or post them on your company’s social media channels. Never reveal or post information about your employees vaccination status, as it is PHI and covered under the ADA.
The more your team members see individuals in their inner circle getting vaccinated safely and moving on with their lives, the more the stigma surrounding the vaccine will diminish, which will make your skeptical employees more inclined to get vaccinated themselves.
This section updated June 4, 2021
One of the best ways to incentivize vaccinations for your employees is to make it as easy and affordable for them to get a vaccine as possible. The CDC has guidance on how to host a vaccination clinic and how to administer vaccines.
Now that the COVID-19 vaccine is more widely available, this may be a good option for you if a good portion of your team is still unvaccinated.
This section updated June 4, 2021
We’ve had several Solution Center Members ask us about whether or not they should tie vaccination to a financial incentive at their offices by, say, offering $200 to employees who get a vaccine. Our initial concern with a vaccination incentive policy was that it may violate the Americans with Disabilities Act (“ADA”), as employees with a legitimate medical condition that prevents them from getting vaccinated may see the policy as discriminatory.
However, new EEOC guidance has quelled this concern by directly stating that employers are not violating the ADA if they “offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community,” as long as they keep the information confidential.
Even so, there are a couple of caveats to this guidance:
Employers who are administering the vaccine to their employees themselves need to be careful that any incentive offered is “not so substantial as to be coercive.” There’s no standard for what an employee would or would not feel is coercive, so be sure to set an incentive based upon what feels right for your own team.
In addition, Montana recently enacted a law that makes vaccination status a protected class. Therefore, employers in the state should be very cautious about implementing any vaccination incentives as they could easily be seen as discriminatory. While this is the first law of its kind, there may be more states or localities that follow suit, so always make sure to check your local laws first (or call us if you are a member).
To begin with, there are some cities and states that prohibit mandatory vaccinations in some situations, so you should check your local laws first. These laws generally apply to hospital workers and either require them to have certain vaccinations, prohibit the employer from requiring vaccinations, or require the employer to offer free vaccinations. To help with this research, here is a list of state immunization laws for hospital workers created by the CDC.
There are also some federal laws that make mandatory vaccinations tricky. Both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) provide protections for employees who are adverse to being vaccinated. They apply to employers with 15 or more employees, but many states have similar laws that apply to smaller employers.
Under the ADA, employees have a right to an exemption if they have a disability that prevents them from getting immunized. Similarly, under Title VII, an employee with a sincerely held religious belief against immunizations is entitled to a reasonable accommodation.
By requiring vaccinations, you may end up forcing an employee to tell you about a medical or religious issue that you may not otherwise have any reason to know about. This just adds extra, unnecessary layers of protection for the employee in this situation.
The way this usually plays out is that an employee will say that they have an immune deficiency or allergy that prevents them from being vaccinated, or that they are part of the Church of Christ, Scientist or the Dutch Reformed Church (the two religious groups in the US that openly discourage vaccination).
When an employee presents this type of issue with getting a vaccine, most employers simply note that in their records and move on. However, as a healthcare employer, you may have heightened concerns around the risks unvaccinated employees pose in the office.
If this is the case, you can’t simply turn around and fire them or force a vaccine on them. Because they are raising issues protected by law, you need to engage in an interactive process with these employees to determine whether there is a reasonable accommodation you can provide.
You are able to ask the employee to verify their need for an exemption from the vaccination requirement, most likely with a letter from their church leader or doctor. Next, you will want to determine if there’s an alternative way of protecting against the flu for this employee.
Common solutions include having the employee wear a mask or other PPE while working with patients to help minimize the risk of spreading the virus. During the COVID-19 pandemic, you’re likely already doing this in your practice. In other cases, particularly if there isn’t appropriate PPE available or if you work with high-risk patients, you could make a change in that employee’s job duties.
We highly recommend looking at these alternative solutions. Otherwise, your last remaining option may be to terminate their employment, but that is extremely risky to do when the employee has raised a medical or religious issue. You can only legally decline to accommodate and, instead, terminate employment if you can show that doing anything else would cause a “direct threat” to others and pose an “undue hardship” on the company.
Since you have been open and seeing patients for months without your team being vaccinated, it would be quite a challenge to prove that suddenly an employee being unvaccinated isn’t something you can handle. This is particularly so in the healthcare industry, where it’s customary to wear some type of PPE anyway and you will regularly be seeing patients who are not vaccinated themselves.
As you might imagine, establishing an undue hardship is a murky legal endeavor that can lead to years of litigation, even when it’s done properly. It’s best to avoid backing yourself into this corner, if at all possible.
Another way this whole process can easily become even more complicated is by inviting unwanted discussions about whether or not people “believe in” or support vaccines. Absent a medical or religious reason for those concerns, those beliefs aren’t protected by law.
That being said, it’s not a can of worms you want to open at work. Not only are these discussions controversial and distracting but, when mixed with a mandatory vaccine policy, they could become protected under the National Labor Relations Act, a law that protects an employee’s right to discuss workplace conditions with coworkers.
Hospitals and other large healthcare facilities are typically subject to their own set of state laws that don’t apply to smaller facilities. This may include mandates that hospital employees stay current on certain vaccinations.
It may also be the case that employees in these facilities are simply strongly encouraged — not required — to get certain vaccines. And the persistence of exposure to pathogens in hospitals may serve as enough motivation for those employees to choose to get vaccinated, whether or not it is legally required of them.
Even so, there are lawsuits popping up across the country by hospital workers who oppose their employers’ vaccine mandate. This is just another reminder about why these policies can be risky, even in workplaces where vaccines seem commonplace.
This section updated June 4, 2021
At this time, we are not aware of any federal or state requirements to mandate the COVID vaccine in the workplace. However, there are some new local laws that require employers to document their employees’ COVID-19 vaccination status. In addition to this legal trend, the CDC has released new guidance for fully vaccinated individuals in non-healthcare settings and even made a few updates to their guidance for healthcare workers.
Based on this new guidance, medical and dental offices should maintain most of the same COVID safety and health policies, even for fully vaccinated healthcare personnel. However, one difference is that fully vaccinated healthcare personnel can follow the same travel guidance as any other traveler. In other words, your fully vaccinated health care employees may not need to quarantine post travel, while your unvaccinated employees will likely need to continue to do so for the indefinite future.
As a result, it is making more and more sense for employers to formally document which employees are vaccinated, even in locations where this is not legally required.
This can be as simple as asking each employee to check one of the following boxes:
___ I have received the full COVID-19 vaccination series.
___ I have received one shot in the COVID-19 vaccination series.
___ I intend to get vaccinated and will notify management when this occurs.
___ I am declining the vaccination at this time.
Another option is to simply notate vaccine refusal for your own records. It can be as simple as adding a note to their file that they were offered but declined the vaccine.
In order for these records to be effective, make sure to update them periodically for employees who are not fully vaccinated.
Whichever system you choose, be careful not to inadvertently elicit more information than you need. For example, the employee may feel they need to substantiate their reasoning and provide you details about a medical condition that you otherwise didn’t need to know about.
From the ADA:
It’s important to understand that an employee declining the vaccine doesn’t change anything about your liability. We are getting many requests for some type of a “waiver” stating that the practice isn’t liable if the employee declines the vaccine and then gets the virus. We would not expect any agreement to that effect to hold up.
An employee can’t waive their right to a safe workplace. Any type of liability waiver in that regard would actually become evidence that you knew your workplace was unsafe.
If someone gets COVID-19 and believes they contracted it from work, they can file for coverage under your workers’ compensation policy. Your insurance company will then take up the issue. Employees can’t typically get WC coverage for influenza as it’s too hard to track where it was contracted, and we expect that’s the approach insurance carriers in most states will try to take with COVID as well.
If you don’t offer any paid time off, then their time off can be unpaid — unless there’s a state or local law mandating paid time.
If an employee has accrued paid time off (vacation, sick, PTO) available to them, you really can’t stop them from using those benefits. Many, if not all, states would consider this to be the same as withholding wages.
If the employee is sick, and under normal circumstances they’d be able to use their paid time off to cover their absence, then they should continue to be able to do that even if they decline the vaccine.
This section updated June 4, 2021
If an employee missed work due to COVID-19 related reasons, the Families First Coronavirus Response Act (FFCRA) may apply to their absence. Our FFCRA blog has more information. While it is currently not required for employers to provide FFCRA pay in 2021, you can still obtain tax credits for doing so.
Eligibility to receive this pay has nothing to do with whether the employee is vaccinated or not, and there is no exception in the law for employees who refuse a vaccination.
In fact, there are now provisions in FFCRA that prohibit employers from providing these benefits to some employees and not others. If you pick and choose which employees you’re willing to give paid leave to, you could actually lose your eligibility for tax credits.
We will alert our members when we have more information regarding developments of FFCRA.
If you have 15 or more employees, then your business is subject to the Americans with Disabilities Act and Title VII of the Civil Rights Act, which means that your employees’ medical and religious objections to vaccination are protected by law. Some states, counties, and cities offer similar legal protections for smaller employers, as well. If your business is subject to such laws, you cannot terminate your employees for refusing a vaccine for a protected reason.
In addition, Montana recently enacted a law that makes vaccination status a protected class. Therefore, Montana employers are prohibited from firing an employee because they refuse the vaccine for any reason. While this is the first law of its kind, there may be more states or localities that follow suit, so always make sure to check your local laws first (or call us if you are a member).
Even if you can legally terminate your employees for refusing a vaccine, the potential ramifications of doing so should be carefully considered. Will terminating your employees for not getting vaccinated result in an excessive amount of work falling on your remaining employees? Will you be able to find a suitable replacement in a reasonable amount of time? Will terminating certain employees for refusing a vaccine create backlash from the rest of your team?
In short, make sure you have an idea how the termination will play out for your business before letting someone go for refusing to get vaccinated.
This section updated June 4, 2021
The CDC has released new guidance for fully vaccinated individuals in non-healthcare settings and even made a few updates to their guidance for healthcare workers.
Based on this new guidance, medical and dental offices should maintain most of the same COVID safety and health policies, including wearing masks, even for fully vaccinated healthcare personnel.
From the ADA:
If you feel that you have a compelling enough reason to justify mandating vaccinations for your employees despite all of the aforementioned drawbacks, here is what you need to know:
Remember: your employees’ personal health information is protected in just the same way as your patients’ health information. Therefore, it is generally not a good idea to offer information to your patients that might expose any of your employees’ inability (or unwillingness) to get vaccinated.
If your patients ask about whether or not your team is being vaccinated, let them know that you are encouraging (or requiring) your team to get the vaccine as soon as it is available to them and that you are continuing to follow CDC and state guidelines related to preventing the spread of the novel coronavirus.
You could even go so far as to outline the steps you are taking to make it easy and even desirable for your employees to get vaccinated. Still, you’ll want to stop short of providing specifics related to what portion of your team will or will not be getting a vaccine.
For additional guidance on this topic, specifically, we’ve actually written a script your employees can use to address this issue when it comes up.
This article discusses vaccines, not COVID testing or other screening procedures. For more information on these topics, check out our resource page on How to Handle COVID Exposure in Your Office.
Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state, and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
A Blog Written by CEDR, written by HR Experts to help you run your practice.
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