What can employers do to request or encourage workers to get a COVID-19 vaccine?
On July 29th, President Biden announced that federal officials must be vaccinated against COVID-19 or meet other conditions, including wearing masks and regularly testing for COVID-19 infection. Growing number of private employers have also announced vaccination requirements for employees to return to work. This leaflet explains what employers can and cannot do according to the applicable regulations to require or encourage vaccination of their employees.
Can the employer request that employees be vaccinated against COVID-19?
Generally yes, employers can require workers who physically enter the workplace to be vaccinated against COVID-19, and before the pandemic others Employer’s vaccination regulations have been used, such as a flu shot. For every vaccination mandate, important standards apply under federal law:
First, a mandatory vaccination program in the workplace must meet the standards of the Americans with Disabilities Act (ADA) that are “job-related” and “business-compatible”. The risk to safety from unvaccinated employees is determined. The determination is based on facts and circumstances pertaining to the workplace and the activity – such as whether the work is carried out indoors or outdoors, or the frequency and duration of an unvaccinated employee’s interaction with other people. In addition, the determination must take into account the latest medical knowledge about COVID-19, such as the degree of spread of the virus in the community. CDC is an important source of up-to-date medical knowledge about COVID-19.
Second, the ADA generally requires employers to provide reasonable accommodation for workers who are not vaccinated against COVID-19 because of a disability (including pregnancy). Title VII of the Civil Rights Act also requires reasonable accommodation for employees who do not obey them because of a genuine religious belief. Such arrangements are required unless they would create undue hardship or significant difficulty or expense on the employer. If it is determined that an unvaccinated worker could pose a safety risk, the employer must consider whether reasonable accommodation could reduce or eliminate that risk. Unvaccinated employees must, for example, wear masks, have themselves regularly tested for COVID-19 or have the choice of teleworking.
Third, employers must not apply vaccination in a way that treats workers differently – based on race, color, religion, gender, national origin, age, or genetic information – in violation of other federal equal opportunities laws (EO).
Finally, the employer can ask employees about their vaccination status or request proof of vaccination. The ADA generally restricts employers from making disability-related inquiries from employees. However, the EEOC guideline states that the COVID-19 vaccination status question is not a disability-related request under the ADA as there are numerous reasons why people may not be vaccinated. If an employee was not vaccinated because of a disability or a righteous religious belief, or for any other reason protected under federal EO laws, as noted above, reasonable accommodation must be considered.
Can employers provide incentives for vaccination?
Generally yes, employers are allowed to incentivize workers to get vaccinated against COVID-19. These can be cash payments, gift cards, or other rewards or penalties. The EEOC Guide notes that federal law would generally not limit the scope of such incentives, with one important exception listed below. The guide also states that employers can take other steps to encourage or facilitate vaccination without breaking federal law. This includes providing information to educate employees about the vaccine and its benefits, and to resolve general questions and concerns. Employers can also offer time out for vaccinations and recovery from side effects. The American Rescue Plan Act provides employers with tax credits to help cover the cost of providing paid vacation workers to receive and recover from COVID-19 vaccinations.
Special incentive restrictions apply to employers who offer a COVID vaccination program direct to Employee. This is because CDC is given before the vaccine is given Questions before screening health history, allergies, pregnancy status, etc., and if the employer or his agent provides the vaccine directly, such pre-screening questions would constitute a disability-related investigation by the employer.
According to the ADA, disability-related inquiries about an employer’s health program, including an on-the-job health program, are only permitted if participation in that program voluntarily. The definition of “voluntary” in the ADA and whether this could include incentives was the subject of Dispute and litigation. When the ADA was first implemented, the EEOC guideline made it clear that a voluntary employer’s health or wellness program must neither require participation nor punish employees for not participating. Then, in 2015, an EEOC regulation revised the definition of “voluntary” workplace health and wellness programs to include those that imposed significant fines – up to 30% of the cost of self-insurance under the employer’s health insurance plan. A federal court overturned this rule and ruled that redefining “voluntary” was arbitrary and capricious. In 2020, the agency began work on a revised regulation to allow incentives for wellness programs, but stopped activities in 2021.
With regard to employer-provided COVID-19 vaccination programs, the current EEOC guidelines allow incentives (which include both rewards and penalties) to participate when the incentives are not so great that they are imperative. However, the agency does not provide any information as to the extent to which an incentive would constitute compulsion. The guidelines also make it clear that the incentive size limit – whatever it may be – does not apply where an employer offers employees an incentive to voluntarily provide evidence that they have received a COVID-19 vaccination from a municipal provider have received.
How Does FDA Emergency Clearance Affect COVID-19 Mandates?
That US Department of Justice recently issued a statement stating that employers and other institutions are not prohibited from imposing vaccination obligations just because the vaccine or at least one federal lawsuit had previously been filed contesting an employer’s COVID-19 vaccine mandate, on the grounds that vaccines are still subject to the EEA. It is possible that other legal challenges for employer vaccination mandates could arise.
State laws and vaccine requirements for employers
In response to federal guidelines, many states have passed laws prohibiting or restricting employers, including public employers, from requiring COVID-19 vaccinations as a working condition. On July 29th there was such legislation Enacted in 7 states and was pending in two others. Therefore, even if employers comply with all federal law requirements, it is possible that vaccination regulations will be challenged under state law.