As the nation is seeing the first round of FDA-released COVID-19 vaccinations, employers are starting to plan for how this will impact their organization and what their role will be in preparing operationally while supporting their employees.
Initial vaccine supplies are limited, and the Centers for Disease Control (CDC) has decided the high-priority groups include health care personnel, long-term care facility residents and workers, essential workers, adults with high-risk medical conditions, and adults over the age of 65. After those groups have been vaccinated, the vaccine will be offered to the general public. It is anticipated this will happen in the spring of 2021.
What should employers consider at this time?
While we await more information on the timeline of the distribution and wider availability of the COVID-19 vaccine, here are some things employers should start planning now to help promote vaccination efforts.
- Employers can begin developing a plan to help educate employees about the vaccine. Employees may have a lot of questions about the effectiveness and long-term effects. Employers can disseminate information from the CDC, Department of Health and Human Services (DHS), the medical community, and wellness program providers. The CDC has published and continues to update FAQs on the vaccine.
- Encourage employees to get the influenza vaccination and work with their doctor on any questions they have about the COVID-19 vaccination.
- It will be important to share information about how the cost of the vaccine will be covered by group health plans.
- When distribution channels allow, consider offering a voluntary onsite vaccine clinic to make it convenient for those employees who desire to receive the vaccine. If covered by the group health plan, allow for family members covered by the plan to also receive onsite vaccinations.
- If employees receive a vaccination at a community site, allow for flexibility in the work schedule for the employee to receive the vaccine.
- If an employer requires employees to provide proof that they received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should not ask for any medical information as part of the proof in order to avoid implicating the ADA.
Can employers mandate the COVID-19 vaccination?
Employers should be cautious in mandating the vaccine for all employees as a condition of employment unless it is job-related and there is a legitimate business reason to do so. Workplace settings such as health care, education, retail, and hospitality where there is a clear “direct threat” risk to a large population could lend itself to a justifiable business reason. An employer should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
The EEOC issued guidance for employers (Section K) regarding obligations to provide accommodations, when disability-related screening questions may be asked, and clarification that the vaccination itself is not a medical examination. Other government agencies may issue additional guidance as vaccination becomes more widely available.
Employees who do not wish to be vaccinated for medical reasons can request an exemption under the Americans with Disabilities Act (ADA). Also, an exemption can be requested if taking the vaccine would violate religious beliefs under Title VII of the Civil Rights Act of 1964. HR professionals should be prepared to document these reasons and engage in an interactive process to avoid liability concerns. If a reasonable accommodation cannot be made, the employer may exclude the employee from the worksite however it does not mean the employee can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities
Union contracts may also be a consideration and if the current collective bargaining agreement would place any restrictions on mandating vaccinations. Employers will also want to consider remote workers and how those work arrangements will impact any vaccination roll-out programs.
In a survey conducted by MRA in November 2020 in which 520 members participated, only 1% indicated they mandate the flu vaccine and 5% are exploring to mandate the COVID-19 vaccine when available. 48% indicated they currently offer onsite flu vaccine clinics and 15% are planning to offer onsite COVID-19 vaccine clinics. This may change as further information about vaccines becomes available.
Vaccinations can be a controversial topic so it will be important for employers to remain neutral and not force employees to be vaccinated if it isn’t job-related, as that could negatively impact employee morale and retention. From a practical viewpoint, most employers will find it more constructive to encourage—rather than require—workers to get a vaccine. Any vaccination policy that is established will need to allow for certain exceptions and comply with EEOC, CDC, ADA, OSHA, and state laws.
What about incentivizing employees to receive the COVID-19 vaccination?
It is not recommended to provide monetary incentives to receive the vaccination, as it may lead to speculation that there are risks to getting the vaccine. Instead, employers are encouraged to work on an information campaign for employees, encourage vaccinations as part of overall health, keep employees working remotely if able, physical distance, and wear facial coverings to maintain a safe work environment.
Employers who are interested in using an incentive in conjunction with their wellness program or HSA program should seek legal counsel to review any potential legal ramifications.
Even if employees receive a vaccine, wearing masks and social distancing will continue to help reduce the chance of being exposed to the virus, spreading it to others, and will need to continue. Experts are indicating that 70 to 80% of the general population will need to receive the COVID-19 vaccination for it to be effective in providing herd immunity. The combination of getting vaccinated and following the CDC’s recommendations will continue to offer the best protection from COVID-19. It will be important for employers to remain flexible and continue to follow their COVID-19 action plan for the workplace.