Issues Surrounding Employers’ Vaccination Policies

Posted by Attorney David McClurg / Comments

As COVID 19 vaccines slowly become more available,[1] many employers are considering adopting mandatory vaccination policies, or offering incentives to their employees to be vaccinated. For most businesses, the primary motivation driving consideration of such policies will be employee safety. However, many hard-hit businesses, such as restaurants, may have an additional motivation: the ability to advertise that they have a “fully vaccinated staff” in order to increase in-store business. Both mandatory and voluntary vaccination policies involve potential legal risks that employers need to be aware of.

MANDATORY VACCINATION POLICIES

None have yet been tested in court for the COVID vaccine, but other flu vaccine programs have been upheld, and given the safety implications, the result will likely be the same for mandatory COVID vaccine policies imposed by private employers. However, such policies raise many issues.

A. Can employees refuse to be vaccinated without being subject to termination?

     1. Objections based on medical or religious concerns.

Under both federal and Wisconsin law, employers must attempt to accommodate employees who a) demonstrate that the vaccine may constitute a health risk for them; or b) object to the vaccine based on a "sincerely held religious belief.” An employer can contest the objection if it believes the employee is being untruthful about the stated “religious belief” or if it appears that the objection is not actually based on religion. In such cases. the EEOC encourages asking these questions:

• Has the employee behaved in a manner that is noticeably inconsistent with the professed religious belief?

• Is the accommodation sought “a particularly desirable benefit that is likely to be sought for secular reasons”? or

• Does the timing of the request render it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)?

Generally, however, the interactive process” the employer must engage in with an employee when accommodation is sought, on either medical or religious grounds, focuses more on whether there is a “reasonable accommodation” available that won’t create an undue hardship for the business. For individuals objecting on religious grounds, an accommodation poses an “undue hardship” if it causes more than a “small cost or difficulty” on the employer’s business operations. However, if the accommodation is requested for medical reasons, the ADA demands an individualized assessment of the employer’s current financial circumstances that show that any “reasonable accommodation” would cause “significant difficulty or expense.”

Accommodations to either a disability or religion-based exemption to obtaining a COVID-19 vaccine might include one of more of the following: a) requiring that the employee continuing to wear a mask at work even once the majority of employees are vaccinated; b) eliminating an employee’s marginal duties that require the person to be in the office or in the company of other employees or the general public; c) continued telecommuting; d) additional PPE; and/or e) revising other workplace policies.

Not all positions will lend themselves to accommodations. The ADA allows an employer to exclude a person from the workplace if, even considering all reasonable accommodation, the employee would still pose a “direct threat” to the health and safety of others if allowed to continue working.

Information on the identities of those employees who have and have not been vaccinated should be treated in the same as other employee medical information. While the information may not be covered under HIPAA, it may be subject to other state and federal privacy and employment laws or regulations, including the ADA, and thus should be secured accordingly. It should not be disclosed without the employee’s express, written consent. Contemplated disclosure (to customers, clients, or anyone else) should be incorporated into any request for consent to the vaccine itself. (Note that agreement to a customer’s request that only vaccinated employees be sent to their facility could be deemed an implicit disclosure of their vaccination status, which could require the employee’s express, written consent.)

    2. Objections based on political concerns, or the effectiveness or potential side effects of the vaccine.

Employees subject to a mandatory vaccination policy are not eligible for exemption or accommodation based on objections that are politically based, or because they doubt the effectiveness of the vaccine, or because they have a generalized fear that there may be significant side effects of the vaccine. However, termination of an employee under these circumstances could lead to litigation challenging the termination, including an (as yet untested) contention that the “informed consent” they would be required to provide to receive the vaccine could not be considered “voluntary” because it was being “coerced” by the employer’s threat to terminate their employment if they failed to consent and receive the vaccine.

Republican state legislators have attempted to include provisions in recent COVID Relief bills that would prevent employers from adopting mandatory vaccination policies. To date those efforts have been unsuccessful. However, before instituting a mandatory policy, employers should evaluate how many of their employees might object, and accept termination rather than be vaccinated, and what effect this might have on employee morale and company operations.

B. What are Some of the other potential pitfalls associated with mandatory vaccine policies?

    1. Potential Discrimination Claims

Although employers may apply a mandatory vaccination policy only to specific jobs where people are in close proximity, or otherwise at higher risk of transmission of the virus, this may not be advisable. Such divisions can invite claims that the employer is discriminating against certain protected classes of employees. If certain classes of employees are exempted from the mandatory policy, there must be a very clear rationale, implemented consistently, as to why the specified jobs involve higher risk of infection

    2. Paid time off should be provided for required off-site vaccinations

If the vaccine is required by the employer, PTO should be offered to employees to obtain the vaccine.

    3. Considerations for contracts with a third party to vaccinate its employees.

An employer using a third party to administer mandated vaccines may be held liable for the third party’s negligence or misconduct. Consequently, the contract should require that the third party:

• Obtain express written consent and acknowledgement of risk from employees prior to vaccination;

• Provide no opinions as to the efficacy or safety of the vaccine;

• Use qualified personnel and unadulterated supplies;

• Indemnify and defend the employer against any employee or other third-party claims associated with vaccine administration;

• Maintain and provide certificate of coverage for appropriate liability insurance; and

• Securely handle the employee’s information in accordance with HIPAA and applicable privacy laws.

Medical information is normally obtained in pre-screen questions used to determine whether individuals can receive the vaccine. Employers should understand that when these questions are asked, the medical examination provisions of the ADA can be triggered, because the questions could elicit a disability-related response. Even if a third-party provider asks pre-screen vaccination questions, it can be construed as a medical examination by employer, if the employer contracted with the third-party to provide the vaccinations.

Under the ADA, an employer is allowed to ask questions eliciting medical information only if the questions are “job related and consistent with business necessity.” Under this standard, pre-screen vaccination questions that elicit medical information can be used by the employer without violating the employees’ rights only if the vaccination program is based on an objective belief that, if an employee does not answer the questions and cannot be vaccinated, the employee will pose a direct threat to other employees in the workplace.

However, if the employee receives the vaccine from an independent provider and only has to provide proof of vaccination to the employer, absent any medical information, the ADA requirements will not be triggered or violated. The pre-screen vaccine questions asked by the independent provider are not considered a violation of the ADA standard, because the employer did not contract with the independent provider, had no access to disability information, and was not screening the employee.

4. Employers must avoid interference with employee’s “protected concerted activities”

The National Labor and Relations Act grants both union and non-union grants employees the right to engage in “protected concerted activities” for the purpose of collective bargaining or other “mutual aid or protection.” Examples of protected activity in this context could include protesting against a mandatory vaccination policy (or the lack of one), organized office communications or flyers among coworkers concerning a vaccination mandate, or discussions among coworkers about the vaccine. Employers should exercise caution before taking any adverse action against employees who discuss or protest a mandatory vaccination policy, because such action could result in an unfair labor practice charge against the employer.

5. In unionized workplaces, employers must determine if a vaccination policy is a mandatory subject of bargaining.

If a mandatory vaccination policy is allowed based on the language of the collective bargaining agreement, then the employer may be able to unilaterally implement the work policy without first bargaining with the union. Otherwise, a vaccination policy may be a “mandatory subject of bargaining” requiring bargaining with union representatives prior to implementation. 

6. Pregnancy

While the Pregnancy Discrimination Act does not contain an obligation to provide an accommodation (like the ADA), employers must be sure that they act consistently. Thus, if the employer has provided an accommodation to an employee based on medical concerns that the vaccine raises with respect to that employee’s disability, the employer should provide the same accommodation to a pregnant employee if the vaccine raises medical concerns with respect to her pregnancy. Failure to act consistently may result in a claim of pregnancy discrimination.

7. Communication of Mandatory Vaccine Policy

Employers should train their supervisors and managers on how to reasonably identify when an employee is requesting an accommodation and to whom accommodation requests should be directed. Employers should try to be flexible in assisting employees with finding reasonable accommodations for their exemptions.

Employers should also be proactive in communicating with employees. Employers should explain employees’ rights regarding the vaccine, the safety of the vaccine, and the employers’ vaccination policies.

VOLUNTARY VACCINATION PROGRAMS

Considering the concerns outlined above, it is anticipated that most employers seeking to encourage their employees to get vaccinated will do so with voluntary programs that may include incentives and added PTO. However, even these voluntary programs give rise to potential issues that employers should be aware of.

A. Avoid High Value Incentives that may be Perceived as Coercive

Given the medical history elicited in the screening questions associated with COVID vaccines, even a voluntary vaccination policy may be considered a “wellness program” subject to the EEOC’s recently proposed regulations. Those proposed regulations provide that employers generally may offer no more than “de minimis incentives,” like a small gift cards or water bottles, to encourage employees to take part in the wellness program. This is to avoid a situation where those who may not wish to participate feel “coerced” into participation based on their reluctance to miss out on a more valuable incentive.

Many companies are seeking to minimize the potential risk of running afoul of these regulations by offering a cash incentive to those who either provide documentation of receiving the vaccine or attend a training session regarding safety precautions to avoid the spread of COVID-19.

Companies can also offer additional PTO to employees choosing to receive the vaccination.

B. Employers Offering Incentives Should Provide Notices to Employees

Employers offering incentives for vaccination should make clear that their employees should consult with their own physicians regarding suitability of the vaccine for each of them, and that the decision and related risk is theirs alone. It is strongly advised that employers obtain written consent and acknowledgment of risk from participants receiving the vaccine pursuant to the terms of a voluntary program. Handbooks and other communications should be purely factual and avoid ‘editorial commentary’ regarding the safety and/or desirability of the vaccine.

C. Employers Using Third Parties to Provide On-Site Vaccinations under a Voluntary Program are Subject to Most of the Same Risks as Employers Doing so in Connection with Mandatory Programs

See paragraph 3, above outlining those concerns.

If you have any questions regarding the COVID-19 Vaccine Programs, the impacts of past or anticipated COVID Relief laws, or any other employment related questions, feel free to contact Dave McClurg at 414.559.7704 or dmcclurg@petriepettit.com.

[1] Wisconsin is currently vaccinating the following eligible populations: a) frontline health care workers; b) nursing home and assisted living residents and staff; c) police, fire department, and correctional staff; and d) adults aged 65 and over. DHS announced future groups tentatively eligible beginning March 1. These groups, in priority order include: a) education and childcare; b) individuals enrolled in Medicaid long-term care programs; c) some public-facing essential workers; d) non-frontline essential health care personnel; and e) staff and residents in congregate living settings.