By Joseph S. Brown, Esq.
The development and distribution of COVID-19 vaccines late last year has offered a glimmer of optimism for businesses hoping to return to “normal” in 2021. But how will the increased availability of COVID-19 vaccines impact the workplace? At this point, most employers – and their lawyers – have just as many questions as they do answers about vaccine programs.
Just this past week, a New York City restaurant came under fire when it terminated a waitress who refused to get vaccinated because she wanted more time to study the impact of the COVID-19 vaccine on fertility. The restaurant owner conceded that the issue could have been handled differently and that it had resulted in an immediate change to the restaurant’s employee guidelines for requesting an exemption.
This story highlights the potential legal pitfalls and bad publicity that employers may have to confront when an employee refuses vaccination. It also highlights the importance of contacting experienced employment counsel to avoid a messy situation that ends up on the front page of the New York Times. With that in mind, below are answers to six commonly asked questions about COVID-19 vaccination policies.
1. Can employers mandate that their workforce get the COVID-19 vaccine?
The answer is yes. In December, the U.S. Equal Employment Opportunity Commission (EEOC) offered guidance on mandatory vaccinations, which you can read about in our prior alert entitled “EEOC Releases Guidance on COVID Vaccine: Six Key Employer Considerations.” While a mandatory vaccine policy is legally permissible (if structured and administered properly), our recommendation was to consider making receipt of the vaccination voluntary and/or having employees receive the vaccine from their own health providers to sidestep potential discrimination issues.
Under the Americans With Disabilities Act (ADA), a mandatory vaccination policy must meet the law’s requirement that the policy be “job-related and consistent with business necessity” or justified by a direct threat. A mandatory vaccination policy, among other things, should provide an avenue for employees to seek an exemption based on a disability or a sincerely held religious belief. In contrast, a voluntary vaccination program – if structured correctly – can sidestep these legal obligations.
Finally, businesses should take note that if the employee is a member of a bargaining unit, any mandatory vaccine policy could raise issues under the National Labor Relations Act.
2. Can we ask an employee if he or she has received the COVID-19 vaccine?
The short answer is yes. But be careful.
According to the EEOC guidance, requesting or requiring proof that an employee has received the COVID-19 vaccination is not likely to elicit information about a disability because there are many reasons that might explain why an employee was not vaccinated. Thus, employers may request or require proof of vaccination without needing to fulfill the “job-related and consistent with business necessity” requirement.
To avoid implicating the ADA, employers should avoid asking follow-up questions to the employee concerning why he or she did not receive the vaccination. Employers should also ask employees not to provide medical information as part of proof of vaccination. Follow-up questions or receiving medical information may be seen as eliciting information about a disability, which would implicate the “job-related and consistent with business necessity” requirement.
3. What are most employers doing about vaccine programs?
Until vaccines are more widely available and the legal landscape becomes more settled, many organizations are in “wait-and-see” mode before making final decisions about vaccination programs.
According to recent research by the Society for Human Resource Management (SHRM), enthusiasm for organization vaccine mandates has dimmed over time, with 60% of organizations saying they will not mandate vaccination as a condition for returning to the workplace. Of the organizations that plan to mandate vaccinations, it is more likely to occur in large organizations with 500 or more employees. Most organizations (74%) plan to recommend their workers get vaccinated. High-risk and government related industries are the mostly likely to encourage vaccination.
As you may have seen in the news, some businesses are offering employees a cash incentive of $100 to get vaccinated. While incentives can be an effective way to convince employees to get vaccinated, the SHRM research reports that 88% of organizations are unsure or have no plans to offer any incentive to encourage vaccination among employees.
4. Can an employer provide incentives for employees who get the vaccine?
The short answer is yes. The legal landscape for offering incentives, however, is far from settled.
First, the EEOC recently announced that it was withdrawing rules regarding the incentives employers can provide their employees as part of a wellness program without violating the ADA or Genetic Information Nondiscrimination Act (GINA). Those rules initially proposed that most wellness programs that include disability-related inquiries and/or medical examinations may offer no more than “de minimis” incentives – such as a water bottle or a gift card of modest value – to encourage employees to participate. With the withdrawal of those rules, employers have little guidance in terms of what incentives, if any, they may offer employees. Business groups are urging the EEOC to provide additional guidance on vaccines.
Second, employers offering incentives will likely have to grapple with the question of reasonably accommodating an employee who insists on receiving the incentive even though she could not get vaccinated due to a legally protected reason, such as a disability. Employers offering incentives for vaccination will have to get creative and develop a plan for addressing this issue.
5. What other steps can a business take to encourage employees to get vaccinated?
Some employers may determine that, instead of developing an incentive program, they will simply encourage employees to get vaccinated by providing access to information from reliable sources. Educating your workforce is crucial. One good starting point is the Centers for Disease Control and Prevention (CDC) Essential Workers COVID-19 Toolkit. This webpage is updated regularly and includes materials such as an introductory letter to your employees, key messages, FAQs for employers and employees, a slide deck, and newsletter content.
Employers should also look to state and local health department websites for information, such providing employees with logistical information about the vaccines to assist employees in getting vaccinated, making appointments, etc. If possible, an employer may make the vaccine available on-site (much like many employers do for the flu vaccine) so it is convenient for employees to get vaccinated.
6. Must an employer provide employees with paid time off to get vaccinated?
In New York, the answer may be yes if the employee has accrued time under state and local paid sick leave laws.
Some employers have voluntarily offered to provide employees with paid time off as an incentive to get vaccinated. But employees in New York may also be entitled to take paid time off pursuant to local and state laws. For example, under the New York State Paid Sick Leave (PSL) Law, employers must provide employees with time off for, among other things, “the diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member.” An employee taking time to obtain the COVID-19 vaccine most likely qualifies for leave under New York’s PSL or New York City’s Paid Sick Leave Law. If the employee has accrued time under applicable sick leave laws, such time can be used to obtain the COVID-19 vaccine.
Finally, New York businesses should be aware that the State Assembly has passed a bill that would require businesses to provide employees up to four hours of paid time to receive COVID-19 vaccinations. As of the time this article was published, that legislation is awaiting review and approval in the New York State Senate. Stay tuned.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]