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On November 20, 2020, the Food and Drug Administration issued an emergency use authorizations (\u201cEUA\u201d) for the first Covid-19 vaccination manufactured by Pfizer Pharmaceuticals and BioNTech SE for use in persons age 16 years and older.\u00a0 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.\u00a0 Each of these vaccines requires two doses to immunize a person.\u00a0<\/p>\n
The Center for Disease Control and Prevention (\u201cCDC\u201d) established priorities for the distribution of these vaccines and others that will also get EUA\u2019s as time progresses.\u00a0 Until now, the CDC\u2019s priorities have limited the distribution of the vaccines primarily to healthcare workers, residents of long-term care facilities, first responders, and frontline essential workers.\u00a0 As supplies of the vaccines increase, the availability of Covid-19 vaccinations for the general public will occur during the first quarter of 2021.\u00a0<\/p>\n
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.\u00a0 A balancing of these factors will determine how they will answer a number of questions about the workplace implications that these vaccinations pose.\u00a0 Typically, these questions lack any \u201cright\u201d or \u201cwrong\u201d answers.\u00a0 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.<\/p>\n
Generally, yes.\u00a0 The Equal Employment Opportunity Commission (\u201cEEOC\u201d) updated its technical assistance guidance entitled, What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws<\/em> [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<\/a>=] on December 16, 2020 (\u201cGuidance\u201d).\u00a0 The EEOC recognizes the right of employers to require employees to be vaccinated for Covid-19, subject to the employer\u2019s obligations to avoid discrimination pursuant to The Americans with Disabilities Act (\u201cADA\u201d), Title VII of the Civil Rights Act of 1964 (\u201cTitle VII\u201d), and the Genetic Information Non-discrimination Act of 2008 (\u201cGINA\u201d).\u00a0 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.\u00a0 It further cautions, however, that a safety-based qualification standard, such as a vaccination requirement, must avoid any screening out of persons with disabilities.\u00a0 To implement a strict Covid-19 vaccination qualification standard, an employer \u201cmust 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.\u00a0 The EEOC directs employers to conduct an individualized assessment of four factors to determine whether a direct threat exists: (i) the risk\u2019s duration, (ii) the potential harm\u2019s nature and severity, (iii) the likelihood of the potential harm\u2019s occurrence, and (iv) its imminence. \u00a0A 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.\u00a0 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.\u00a0 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.\u00a0 The EEOC emphasizes that only if no reasonable accommodation exists can an employer terminate a worker\u2019s employment because of her or his disability related inability to be vaccinated.\u00a0<\/p>\n Title VII, furthermore, potentially limits an employer\u2019s right to establish a Covid-19 vaccination qualification standard.\u00a0 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.\u00a0 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.\u00a0 Not every belief, however, has a religious basis.\u00a0 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\u2019s vaccination requirement. \u00a0Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania<\/em>, 877 F.3d 487, 492-93 (3rd<\/sup> Cir. 2017).\u00a0 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\u2019s religious beliefs or practices that conflict with the vaccination requirement.\u00a0 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.\u00a0 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.\u00a0 Existing case law, furthermore has recognized an employee\u2019s adherence to atheism, agnosticism, veganism, and paganism, among others, to constitute sincerely held religious beliefs. \u00a0The 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.<\/p>\n The standards, moreover, for an undue hardship under the ADA and Title VII vary.\u00a0 On the one hand, for ADA purposes, it means a significant expense or difficulty.\u00a0 On the other hand, for Title VII purposes, an undue hardship need only impose a de mimimus burden on the employer.\u00a0 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\u2019s disability under the ADA.<\/p>\n The Guidance also warns employers that a mandatory Covid-19 vaccination policy could implicate Title VII\u2019s prohibitions against pregnancy discrimination.\u00a0 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.\u00a0 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.\u00a0 Upon its receipt of such confirmation, the employer could exclude such an employee from its workplace but not necessarily from its workforce.\u00a0 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.\u00a0<\/p>\n No.\u00a0 The Guidance specifically recognizes that an employer\u2019s administration of vaccinations to its workers to protect them against infections by Covid-19 seeks no information about an employee\u2019s either impairments or health status.\u00a0 It, however, cautions that pre-screening vaccination questions may implicate the ADA\u2019s provisions that limit an employer\u2019s directing disability related questions to its employees.\u00a0 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.<\/p>\n First, a voluntary Covid-19 program eliminates most of an employer\u2019s reasonable accommodation obligations under the ADA and Title VII for such a program.\u00a0 If a disability, religious belief, or pregnancy causes a worker to avoid being vaccinated, the employee needs no accommodation.\u00a0 Nothing adverse, furthermore, such as removal from either the workplace or workforce, happens to her or him.\u00a0<\/p>\n 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.\u00a0 Thus, the employer, or its contractor, may ask questions whose answers may disclose information about an employee\u2019s disability or medical condition without satisfying the job-related and consistent with business necessity standard.\u00a0 If the employee refuses to answer the questions, then the employer, or its contractor, merely provide no vaccination to the worker.\u00a0 Her or his doing so produces no adverse effect on his employment.\u00a0<\/p>\n 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.\u00a0 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\/<\/a>].\u00a0 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. \u00a0By definition, a participatory wellness program cannot condition any program rewards on a participant\u2019s satisfaction of a standard related to a health factor.\u00a0 Both the ADA and GINA limit participation in wellness programs that include medical questions and exams to voluntary programs.\u00a0 Neither the ADA nor GINA define the meaning of voluntary wellness programs.\u00a0 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 \u201cde minimus\u201d ones, such as a water bottle or gift card of modest value. \u00a0The EEOC also gave the following examples of incentives that exceed the de minimus standard:\u00a0 monthly $50 credits toward the employee\u2019s annual healthcare costs, the employer\u2019s payment of an employee\u2019s annual gym membership, or an airline ticket. \u00a0[https:\/\/www.eeoc.gov\/regulations\/proposed-rule-amendments-regulations-under-americans-disabilities-act<\/a> and https:\/\/www.eeoc.gov\/regulations\/proposed-rule-amendments-regulations-under-genetic-information-nondiscrimination-act<\/a>]. \u00a0The inauguration of President Biden on January 20, 2021 may ultimately cause the withdrawal of these proposed regulations before they become final and take effect.\u00a0 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. \u00a0\u00a0<\/p>\n Yes.\u00a0 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.\u00a0 Most employers with mandatory Covid-19 vaccination policies, offer their employees the opportunity to get their vaccinations in the workplace.\u00a0 This practice minimizes the unproductive paid time for employees to get their vaccinations.\u00a0 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.\u00a0 In addition, if the employee must pay any amounts to be vaccinated, then the employer must pay for such vaccination costs if the employee\u2019s 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. \u00a0From 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\u2019s vaccination requirement.<\/p>\n 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.\u00a0 An exception to its having such a duty to bargain would occur if its collective bargaining agreement reserves the employer\u2019s right to establish such a program unilaterally.\u00a0 Otherwise, the adoption of a mandatory vaccination program involves a mandatory subject of bargaining under the National Labor Relations Act.\u00a0 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.\u00a0 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\u2019s agreement.\u00a0<\/p>\n According to the CDC severe allergic reactions to Covid-19 vaccinations can occur, but only rarely.\u00a0 The CDC\u2019s data shows the detection of only 21 cases of anaphylaxis happened during Pfizer\u2019s testing of its vaccine among 1.9 million participants receiving their initial doses.\u00a0 Pfizer reported that about 70 percent of those reactions took place within 15 minutes of the participant\u2019s receiving the vaccine.<\/p>\n 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.\u00a0 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.\u00a0 In that scenario, workers\u2019 compensation likely covers any claims originating from an adverse reaction to the Covid-19 vaccine.\u00a0 Before implementing a mandatory vaccination program, an employer should contact its workers\u2019 compensation insurer to confirm that its insurance would cover injuries or illnesses caused by an adverse reaction to the vaccine.<\/p>\n In the context of a voluntary vaccination program for which the employer hired a contractor to administer vaccine to its employees, an employer\u2019s workers\u2019 compensation insurance would likely exclude claims involving an adverse reaction to the vaccine from coverage.\u00a0 In such cases, an employee could theoretically bring a negligence claim against an employer.\u00a0 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. \u00a0Realistically, such a negligence claim would require a highly unlikely confluence of events to occur.<\/p>\n Conclusion.<\/em><\/strong><\/p>\n The availability of Covid-19 vaccinations will soon increase.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 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.\u00a0 For more information about workplace Covid-19 vaccination workplace issues, please contact Gerry Richardson, (314) 552-4053, grichardson@evans-dixon.com<\/a>.<\/p>\n<\/p><\/div>\n\n
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