Business Law Business Law Resources COVID-19

WHAT QUESTIONS DO EMPLOYERS NEED TO ASK ABOUT COVID-19 VACCINATIONS?

On November 20, 2020, the Food and Drug Administration issued an emergency use authorizations (“EUA”) for the first Covid-19 vaccination manufactured by Pfizer Pharmaceuticals and BioNTech SE for use in persons age 16 years and older.  The agency has since granted a similar EUA on December 18, 2020 for the Covid-19 vaccine manufactured by Moderna TX, Inc. for administration to individuals at least 18 years old.  Each of these vaccines requires two doses to immunize a person. 

The Center for Disease Control and Prevention (“CDC”) established priorities for the distribution of these vaccines and others that will also get EUA’s as time progresses.  Until now, the CDC’s priorities have limited the distribution of the vaccines primarily to healthcare workers, residents of long-term care facilities, first responders, and frontline essential workers.  As supplies of the vaccines increase, the availability of Covid-19 vaccinations for the general public will occur during the first quarter of 2021. 

Employers can use the time before Covid-19 vaccinations become more widely available to consider the impact of such vaccinations on their rights, their responsibilities, and their risks.  A balancing of these factors will determine how they will answer a number of questions about the workplace implications that these vaccinations pose.  Typically, these questions lack any “right” or “wrong” answers.  Rather, the answers will vary widely from one workplace to another in view of the industry and culture of each workplace and the risk tolerance of any particular employer.

  1. Can Employers Require Their Employees to Get Covid-19 Vaccinations?

Generally, yes.  The Equal Employment Opportunity Commission (“EEOC”) updated its technical assistance guidance entitled, What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws [https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=] on December 16, 2020 (“Guidance”).  The EEOC recognizes the right of employers to require employees to be vaccinated for Covid-19, subject to the employer’s obligations to avoid discrimination pursuant to The Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Non-discrimination Act of 2008 (“GINA”).  The Guidance provides that an employer may establish a qualification standard that requires workers to pose no direct threats of imminent harm to their co-workers.  It further cautions, however, that a safety-based qualification standard, such as a vaccination requirement, must avoid any screening out of persons with disabilities.  To implement a strict Covid-19 vaccination qualification standard, an employer “must show that an unvaccinated employee would pose a direct threat risking substantial harm to the health or safety of the individual or others that no reasonable accommodation could eliminate or reduce.  The EEOC directs employers to conduct an individualized assessment of four factors to determine whether a direct threat exists: (i) the risk’s duration, (ii) the potential harm’s nature and severity, (iii) the likelihood of the potential harm’s occurrence, and (iv) its imminence.  A conclusion that a direct threat exists would include a determination that an unvaccinated worker would expose others to the virus at the worksite. Upon such a determination, an employer could exclude an unvaccinated employee from the worksite.  The employer, however, could only exclude such a worker from its workforce if it further lacked any reasonable accommodation by which it could eliminate or reduce the risk of the direct threat posed by the unvaccinated worker without undue hardship. Thus, an employer that requires Covid-19 vaccinations must provide a reasonable accommodation to a worker whose disability makes her or him unable to get such a vaccination.  According to the EEOC, a reasonable accommodation could include allowing such a worker to work remotely or either a paid or unpaid leave of absence.  The EEOC emphasizes that only if no reasonable accommodation exists can an employer terminate a worker’s employment because of her or his disability related inability to be vaccinated. 

Title VII, furthermore, potentially limits an employer’s right to establish a Covid-19 vaccination qualification standard.  It provides that employers must make a reasonable accommodation to the sincerely held religious beliefs and practices of their employees unless doing so would impose an undue hardship on the employer.  The Guidance instructs employers normally to assume that an employee has based her or his request for an accommodation on a sincerely held religious belief.  Not every belief, however, has a religious basis.  For example, an appellate court has held that a person generally opposed to vaccines lacks a sincerely held religious belief upon which he bases his refusal to fulfill the employer’s vaccination requirement.  Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 877 F.3d 487, 492-93 (3rd Cir. 2017).  If an employee raises an objection to a vaccination job qualification, then the employer has an objective basis to ask her or him to provide additional supporting information about the employee’s religious beliefs or practices that conflict with the vaccination requirement.  If the employee offers no or insufficient information, then the employer has no accommodation duty and can lawfully terminate the employment of such an employee for the failure to get vaccinated.  On the other hand, if the employee supplies information that establishes her or his sincerely held religious beliefs that conflict with the vaccination requirement, then the employer must determine whether it can provide a reasonable accommodation to the employee without undue hardship.  Existing case law, furthermore has recognized an employee’s adherence to atheism, agnosticism, veganism, and paganism, among others, to constitute sincerely held religious beliefs.  The Guidance views working remotely and either unpaid or paid leaves as alternatives an employer faced with religiously based objections to a vaccination requirement must consider.

The standards, moreover, for an undue hardship under the ADA and Title VII vary.  On the one hand, for ADA purposes, it means a significant expense or difficulty.  On the other hand, for Title VII purposes, an undue hardship need only impose a de mimimus burden on the employer.  Consequently, employers face an easier task to prove an undue hardship under Title VII in the context of accommodating a religious practice or belief as opposed to accommodating an employee’s disability under the ADA.

The Guidance also warns employers that a mandatory Covid-19 vaccination policy could implicate Title VII’s prohibitions against pregnancy discrimination.  If an employee refuses to get a vaccination because of her pregnancy, then Title VII and, in some instances, the ADA require the employer to treat the pregnant worker similar to its treatment of others similar in their ability or inability to work unvaccinated.  First, the employer could direct the employee to provide additional information to confirm that her health care provider has advised her against getting a Covid-19 vaccination because or her pregnancy.  Upon its receipt of such confirmation, the employer could exclude such an employee from its workplace but not necessarily from its workforce.  The employer would further have an obligation to determine whether it could offer a reasonable accommodation to the unvaccinated pregnant worker, such as working remotely or either a paid or unpaid leave without undue hardship. 

  • Does the Administration of Covid-19 Vaccinations in the Workplace by Either the Employer or Its Contractor Involve a “Medical Examination” for ADA Purposes?

No.  The Guidance specifically recognizes that an employer’s administration of vaccinations to its workers to protect them against infections by Covid-19 seeks no information about an employee’s either impairments or health status.  It, however, cautions that pre-screening vaccination questions may implicate the ADA’s provisions that limit an employer’s directing disability related questions to its employees.  If an employer or its contractor administers vaccinations to workers, then it must show that its pre-screening questions satisfy the job-related and consistent with business standard for disability related inquiries.

  • If an Employer Encourages, Rather Than Requires, Its Workers to Get Covid-19 Vaccinations How Do Its Legal Duties Change?

First, a voluntary Covid-19 program eliminates most of an employer’s reasonable accommodation obligations under the ADA and Title VII for such a program.  If a disability, religious belief, or pregnancy causes a worker to avoid being vaccinated, the employee needs no accommodation.  Nothing adverse, furthermore, such as removal from either the workplace or workforce, happens to her or him. 

Similarly, if the employer makes Covid-19 vaccinations available in the workplace, the employee must answer pre-vaccination medical inquiries only if she or he voluntarily seeks a vaccination.  Thus, the employer, or its contractor, may ask questions whose answers may disclose information about an employee’s disability or medical condition without satisfying the job-related and consistent with business necessity standard.  If the employee refuses to answer the questions, then the employer, or its contractor, merely provide no vaccination to the worker.  Her or his doing so produces no adverse effect on his employment. 

Some employers have established a voluntary Covid-19 vaccination program by providing incentives to workers to get vaccinations away from the workplace from independent third parties, such as pharmacies, clinics, or hospitals.  These employers have offered to pay employees who get vaccinated sums equivalent to two to four hours at their regular pay rate. [https://www.usatoday.com/story/money/business/2021/01/14/covid-vaccine-dollar-general-instacart-pay-employees-getting-vaccine/4160708001/].  In proposed regulations issued on January 7, 2021, however, the EEOC restricted the incentives that employers may furnish to encourage employees to get vaccinated in participatory wellness programs that ask participants to provide medical information.  By definition, a participatory wellness program cannot condition any program rewards on a participant’s satisfaction of a standard related to a health factor.  Both the ADA and GINA limit participation in wellness programs that include medical questions and exams to voluntary programs.  Neither the ADA nor GINA define the meaning of voluntary wellness programs.  The proposed regulations state that to satisfy the voluntary participation requirement imposed by the ADA and GINA, employers must limit incentives to participate in wellness programs to “de minimus” ones, such as a water bottle or gift card of modest value.  The EEOC also gave the following examples of incentives that exceed the de minimus standard:  monthly $50 credits toward the employee’s annual healthcare costs, the employer’s payment of an employee’s annual gym membership, or an airline ticket.  [https://www.eeoc.gov/regulations/proposed-rule-amendments-regulations-under-americans-disabilities-act and https://www.eeoc.gov/regulations/proposed-rule-amendments-regulations-under-genetic-information-nondiscrimination-act].  The inauguration of President Biden on January 20, 2021 may ultimately cause the withdrawal of these proposed regulations before they become final and take effect.  Given the uncertainty regarding the proposed regulations, employers that implement voluntary Covid-19 vaccination programs should limit any participation incentives to relatively modest ones, such as several hours of paid time off to a maximum equivalent to $100.   

  • If an Employer Requires Employees to Get Vaccinated, Must Employers Pay Their Employees for the Time that They Spend to Get Their Vaccinations?

Yes.  If the employer requires an employee to be vaccinated as a condition of employment, then it must pay the employee for the time that it takes the employee to get a vaccination.  Most employers with mandatory Covid-19 vaccination policies, offer their employees the opportunity to get their vaccinations in the workplace.  This practice minimizes the unproductive paid time for employees to get their vaccinations.  Otherwise, if the employees go to offsite locations to get their vaccinations, the employer must pay them for any travel time during their work day to and from the vaccination site, any waiting time at the vaccination site, and time spent to be vaccinated.  In addition, if the employee must pay any amounts to be vaccinated, then the employer must pay for such vaccination costs if the employee’s payment of them would effectively reduce her or his pay to a pay rate below the minimum wage for the work week in which she or he received the vaccination.  From an employee relations standpoint, however, employers should support their mandatory vaccination programs by paying any costs that the employee otherwise would bear to satisfy the employer’s vaccination requirement.

  • How Does a Union Represented Collective Bargaining Unit in a Workplace Affect an Employer’s Implementation of a Mandatory Covid-19 Vaccination Program?

To implement a Covid-19 vaccination program as a condition of employment in a union represented workplace, the employer must typically bargain with the union.  An exception to its having such a duty to bargain would occur if its collective bargaining agreement reserves the employer’s right to establish such a program unilaterally.  Otherwise, the adoption of a mandatory vaccination program involves a mandatory subject of bargaining under the National Labor Relations Act.  This means that the employer must negotiate with the union about such a program to implement it during the term of a collective bargaining agreement.  If the employer cannot reach agreement with the union on the issues relating to its mandatory Covid-19 testing program, it can normally negotiate to an impasse and then implement the program without the union’s agreement. 

  • If an Employer Offers Covid-19 Vaccinations in the Workplace, What Liability Risks Accompany Its Doing So?

According to the CDC severe allergic reactions to Covid-19 vaccinations can occur, but only rarely.  The CDC’s data shows the detection of only 21 cases of anaphylaxis happened during Pfizer’s testing of its vaccine among 1.9 million participants receiving their initial doses.  Pfizer reported that about 70 percent of those reactions took place within 15 minutes of the participant’s receiving the vaccine.

In most cases, whether in the context of a mandatory vaccine program or a voluntary one, a party other than the employer administers the vaccinations.  Where an employer requires workers as a condition of employment to get vaccinated, the employer likely has joint liability with the contractor that administers the vaccine.  In that scenario, workers’ compensation likely covers any claims originating from an adverse reaction to the Covid-19 vaccine.  Before implementing a mandatory vaccination program, an employer should contact its workers’ compensation insurer to confirm that its insurance would cover injuries or illnesses caused by an adverse reaction to the vaccine.

In the context of a voluntary vaccination program for which the employer hired a contractor to administer vaccine to its employees, an employer’s workers’ compensation insurance would likely exclude claims involving an adverse reaction to the vaccine from coverage.  In such cases, an employee could theoretically bring a negligence claim against an employer.  To do so, she or he would have to prove that the employer selected a contractor to administer the vaccine where the employer knew or had reason to know the contractor had experienced an inordinately high number of adverse reactions to the Covid-19 vaccinations that the contractor had previously administered.  Realistically, such a negligence claim would require a highly unlikely confluence of events to occur.

Conclusion.

The availability of Covid-19 vaccinations will soon increase.  An employer sensitive to maintaining a safe and healthy workplace will face a number of questions about whether a mandatory, voluntary, or no vaccination program makes the most sense for its workplace.  Similarly, it may need to decide whether it needs different approaches to vaccinations for some of its facilities as opposed to others or for some groups of workers as opposed to others.  The choices that an employer makes about whether to have a vaccination program and, if so, the specifics of its program affect its rights, responsibilities, and risks dramatically.  An employer making decisions about Covid-19 vaccination workplace issues should discuss them in advance with its labor and employment law counsel for specific legal advice.  For more information about workplace Covid-19 vaccination workplace issues, please contact Gerry Richardson, (314) 552-4053, grichardson@evans-dixon.com.

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