Can employers issue COVID-19 vaccine mandates for employees?

When introducing the COVID vaccine, many employers ask one big question: can we mandate a COVID vaccine so employees can return to their physical workplaces? The answer is often yes, although there are significant limitations and qualifications.

EMERGENCY USE AUTHORITY

COVID vaccines are introduced as part of an Emergency Use Authorization (EUA) and not as part of the regular approval process of the Food and Drug Administration (FDA). This avenue begs the question of whether employers can introduce a COVID vaccine mandate as a condition of employment, as the EUA process is very fast compared to the time it would take if these COVID vaccines were subject to standard FDA approval . As part of an EEA, recipients of the vaccine must be told that they have the “option to accept the vaccine” and they must be informed of the “consequences of rejection”. At this point, it may be sufficient for an employer to advise workers that one of the “consequences of refusal” may be loss of hours or possibly even exclusion from the job site. According to a blog post by Faegre Drinker Biddle & Reath LLP, there has been at least one case in New Mexico of testing the limits of a COVID vaccine mandate under the EEA. It is likely that there will be more testing in the future.

VACCINES MAY BE NECESSARY – WITH EXCEPTIONS

According to the Equal Employment Opportunity Coalition (EEOC), a COVID vaccine mandate is not in and of itself a medical examination and therefore does not imply any potential issues with the American With Disabilities Act (ADA) and may be a work qualification for health or safety at work . However, if the employer wishes to offer the vaccine locally, asking the pre-screening questions can be viewed as a medical examination as the questions could reveal a disability. In general, there is less obligation on the employer to put in place a COVID vaccine mandate, but employees must turn to an outside third-party provider to obtain the vaccine.

Photo by Annie Spratt via Unsplash

Once the employer needs the vaccine and the workers are vaccinated during the time they normally work, the employer must pay for that time, even if the worker receives the vaccine off-site. However, if the employer only needs the vaccine, but the employee receives the vaccine off-site and in his spare time, the employer does not have to pay the employee for the time it took to vaccinate.

If the employer requires proof of vaccination (e.g. checking the employee’s COVID vaccination card), the employer should not ask follow-up questions to determine why the employee did not get the shot, as this could potentially also reveal disabilities.

Exceptions to a COVID VACCINE MANDATE

There are two main exceptions to an employer’s COVID vaccine mandate. First, if an employee has a sincere religious belief, practice, or compliance, the employee can suggest reasonable accommodation instead of receiving a COVID vaccine. The employer is not required to provide the requested accommodation if it would place an undue burden on the company, which means more than just nominal costs. The employer can also offer other accommodation – the employer does not have to provide the employee’s preferred accommodation just because the employee has asked for specific accommodation.

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Second, the employer should re-evaluate the requested accommodation if the employee gives a disability or medical reason for not receiving the vaccine. If the proposed accommodation would cause significant difficulties or costs (given the type and cost of the accommodation, the financial resources of the institution and the employer, and the number of employees and the impact on the business), the employer must not provide the accommodation.

In either case, potential accommodation could include additional personal protective equipment, alternate shifts, off-site work (if available), vacation, change of job assignment, and temporary reassignment of the employee.

INCENTIVES

The Bureau of Labor and Industry (BOLI) and the EEOC enable employers to incentivize vaccination. However, these incentives should generally not be discriminatory. This means that the incentives should not lead to wage differentials between vaccinated and unvaccinated people and should not require information that is otherwise protected, such as: B. Personal health information.

Photo by Matthew Henry on Burst

Under the Trump administration, the EEOC proposed rules that allow small incentives for COVID vaccines such as water bottles or small gift cards from employers. As part of a broader effort to realign several federal agencies, these rules have been withdrawn by the Biden government. More rules on vaccine incentives are expected, but no rules or guidance have been published by the Biden administration as of this writing.

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BOLI has specifically approved a system that allows employers to grant a bonus to all employees once a certain vaccination threshold is reached. Other options would be to provide specific paid vacation time for employees receiving the vaccine as well as employees documenting an exception. Fred Meyer is offering a $ 100 incentive to employees who are vaccinated and employees, with one exception, who are taking a safety course.

Biden recently announced a paid vacation program that allows employees to qualify for paid vacation while they are vaccinated and recover from the side effects of the COVID vaccine. The IRS should reimburse smaller employers for these costs, but as this is a recent development, no regulations or guidelines are yet available.

END EFFECT

Currently, very few employers plan to require a COVID vaccine as a prerequisite for returning to or continuing to work. If you are one of these employers, it is important to have a COVID vaccination contract with an employment law attorney that sets out what is required, how the program will be implemented, how exemptions will be dealt with, and whether there will be incentives.

Alicia is a business transaction attorney with experience in highly regulated industries. She works with a wide variety of marijuana and hemp clients, providing strategic advice and unique insights. You can contact Alicia Altenau at info@gl-lg.com or 503-488-5424.

This article originally appeared in the Green Light Law Group and was republished with permission.