Five Key Questions Employers Should Carefully Consider Before Implementing COVID-19 Vaccination Policies

Last week, the human resources department gained a clearer understanding of one of the most important workplace issues of 2021.

On December 16, the U.S. Equal Employment Opportunity Commission (EEOC) virtually confirmed that employers can require employees to provide proof of COVID-19 vaccination without violating anti-discrimination laws such as the Americans with Disabilities Act (ADA), noting that such requirements do not in themselves constitute a medical examination under the ADA. Although the agency listed some exceptions, several employment law experts interviewed by HR Dive said the guidance would be helpful to employers.

At the same time, the EEOC did not fully endorse employer mandatory vaccination policies. Jason Habinsky, a partner at Haynes and Boone and chair of the firm's labor and employment practice group, said of the guidance: "It's not as clear as you might expect." Habinsky's understanding is that the EEOC is saying "you can require vaccination in certain circumstances, but if you do, here are some things to keep in mind."

The guidance also omitted information about how mandatory vaccination might affect specific categories of employees, including pregnant women and employees under 18. These are just a few examples of areas where employers may face more questions.

Question 1: Will the exceptions to mandatory vaccination "swallow the rule"?

The EEOC's guidance details the intersection of mandatory vaccination with the ADA, Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act. The guidance makes clear that employers may need to exempt employees who cannot be vaccinated due to disability or sincerely held religious beliefs—although, according to the guidance, they may in some cases be excluded from the workplace. However, employers should consider at least two other categories of employees when developing vaccination policies.

Pregnant women are one such group, protected by federal pregnancy discrimination laws and various state and local laws, Habinsky said. He noted that EEO laws require employers to accommodate employees who need reasonable accommodations due to pregnancy-related disabilities or medical issues.

"If a pregnant employee indicates that due to her pregnancy, her healthcare provider has advised her not to receive the vaccine, the employer should handle this situation like any other accommodation request based on a medical condition," Brett Coburn, a partner at Alston & Bird, said in an email to HR Dive. He added that employers can essentially consider the request and conduct an individualized assessment to decide how to respond.

Younger employees are another group that may be exempt. This is because the COVID-19 vaccine developed by Pfizer and BioNTech has been recommended by the U.S. Centers for Disease Control and Prevention (CDC) for people aged 16 and older. On December 18, the CDC announced that a second vaccine, developed by Moderna, received emergency use authorization for individuals aged 18 and older.

Barry Hartstein, a shareholder at Littler Mendelson and co-chair of the firm's EEO and diversity practice group, said employers can expect to see clinical studies targeting individuals under 16. But in the meantime, employers with such employees "need to be mindful" of continuing existing protocols and conducting frequent COVID-19 testing for such employees, Hartstein said.

Taken together, it is clear that many broad groups may be exempt from direct mandatory vaccination requirements. This alone may make employers reconsider whether to implement such policies.

"Now, the question you have to ask yourself is whether the exceptions could swallow the rule?" Hartstein said. "As an employer, our goal should be to do everything we can to limit the spread of the virus and keep people safe."

Question 2: Is the current vaccination phase suitable for mandatory requirements?

The current vaccination program operates under the emergency use authorization authority of the U.S. Food and Drug Administration (FDA). To date, two vaccines—the Pfizer-BioNTech vaccine and the Moderna vaccine—have received emergency use authorization.

Hartstein said that this authorization essentially means both vaccines are still in the trial phase and have not yet received full FDA approval. He added that vaccines are being rolled out in phases at the state level, initially primarily targeting healthcare institutions, many of which have indicated they will not mandate vaccination until full FDA approval.

Additionally, the patient information sheets provided to those receiving the vaccine disclose that they may have allergic reactions to the vaccine, and employers may need to be aware of this during planning, Hartstein said. A sample information sheet for the Pfizer-BioNTech vaccine has been provided electronically by the company.

So far, early reports from state governors indicate that even employers operating in essential industries will face obstacles in implementing mandatory vaccination. During a December 17 U.S. Chamber of Commerce Foundation webinar, Arkansas Governor Asa Hutchinson said the state's first vaccines were prioritized for healthcare workers and sent to hospitals and pharmacies, with residents and staff of long-term care facilities following.

However, when asked about vaccination of essential workers, Hutchinson said it could be "more challenging," adding that Arkansas's current vaccine supply is insufficient to cover all essential workers in the state.

Hutchinson said deciding how to allocate Arkansas's first batch of vaccines was "easy," but "as more vaccines enter the supply chain, scrutiny and debate over how to allocate them will increase."

Dr. Troyen Brennan, executive vice president and chief medical officer of CVS Health, said during the webinar that the U.S. has the capacity to complete 100 million to 150 million vaccinations per month, although most people will need more than one dose. He added that vaccination of essential workers could begin in mid-to-late February 2021. "There's no reason it can't be done relatively quickly," Brennan said.

This forecast came as Axios reported that hospitals in multiple states received 25% to 40% fewer COVID-19 vaccine doses than expected during the week of December 20.

As the rollout progresses, employers considering mandatory vaccination will need to pay attention to the availability and accessibility of vaccines, Habinsky said.

Question 3: Should employees be given paid time off to get vaccinated? What about incentives?

Incentivizing employees to get vaccinated is "key," Habinsky said, and providing paid time off for vaccination could be one way.

Providing paid time off to deal with side effects "is certainly a good idea" and may be required under some state and local laws, Coburn said. According to the CDC, side effects of the Pfizer-BioNTech vaccine may include pain, swelling, and redness at the injection site, as well as chills, fatigue, and headache. "For employees who have exhausted their paid time off or paid sick leave, employers might consider offering additional paid time off for this purpose, but they must weigh this potential incentive against the risk of employee abuse—employees might get vaccinated and use it as an excuse to take a day or two of paid leave even if they have no side effects," Coburn added. Employers may also need to stagger employee vaccination dates to ensure adequate staffing in the workplace.

Another option—and possibly an alternative to mandatory vaccination—is more direct incentives. Steven J. Friedman, a shareholder at Littler Mendelson, said in an email to HR Dive that employers have long used health plans to provide cash rewards to employees, focusing on health outcomes and health-related activities, but vaccination incentives "would not be outcome-based or activity-based rewards."

Instead, vaccination incentives "would be viewed as participation-based rewards offered outside of a health plan, so EEOC rules would apply," Friedman said. EEOC regulations on participation-based health programs require employers to provide reasonable accommodations for employees with disabilities to ensure such employees can participate. If accommodation is not possible, the regulations require that a reasonable alternative activity be offered so that employees can still earn the reward without participating in the activity.

"With respect to vaccination, it is not yet clear what issues might arise in accommodating employees or finding reasonable alternatives for those who cannot be vaccinated," Friedman said. "However, it can be predicted that, based on preliminary findings, some individuals may be allergic to the vaccine and cannot safely receive it. In such cases, employers may need to allow these employees to participate in other activities to earn health rewards."

But according to Friedman, it is not yet clear how EEOC regulations would apply to employees who refuse vaccination based on religious practices or personal objections. "It can be presumed that if the objection cannot be defined as related to a disability, no accommodation or alternative would be required," he said regarding health programs with incentives.

Coburn said incentives may also appeal to employers concerned that a large portion of employees might refuse to comply with mandatory vaccination policies, as such policies could put employers in a position of either firing these employees or deviating from the policy.

Coburn added that employers could also encourage vaccination through educational campaigns and by covering vaccination-related costs. Habinsky noted that employers may be able to work with health plans to provide coverage for vaccination-related expenses.

For employers looking to encourage vaccination, marketing may be just as important as incentives, Hartstein said. For example, he suggested employers consider filming their CEO getting vaccinated to encourage the perception that vaccines are safe and effective.

Question 4: What if a group of employees refuses vaccination? Is this protected activity under the National Labor Relations Act?

In a previous interview with HR Dive, Hartstein noted that employers may face compliance issues under the National Labor Relations Act (NLRA) when issuing mandatory vaccination policies. If a group of employees protests COVID-19 vaccination, this could fall within the scope of protected concerted activity, he said.

On the other hand, employers operating in unionized workplaces may need to consider involving union representatives. "If you want a vaccination program to be successful, there is always the question of whether you need to bargain with the union before rolling it out," Hartstein said. "Involving union representatives in the conversation is really important."

Employers may also need to pay attention to any guidance on vaccination issued by the Occupational Safety and Health Administration (OSHA). The general duty clause of the Occupational Safety and Health Act requires employers to provide "a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm."

But Habinsky said there is a question as to whether employers should maintain a safe and healthy workplace by requiring COVID-19 vaccination, and OSHA has not yet issued specific guidance on this.

Question 5: How might the situation change as vaccines become more widely available?

Ultimately, vaccine availability will largely determine the extent to which employers can mandate vaccination, Habinsky said.

Coburn said that if vaccines become widely available in the coming months, employers may need to prepare for a large number of employees getting vaccinated at the same time. If many employees need time off to deal with side effects, this could strain staffing levels.

Vaccines are not the "ultimate solution" to employers' COVID-19 response, Hartstein said. It is not yet clear whether vaccinated individuals may still transmit the virus asymptomatically in the workplace, meaning preventive measures such as mask-wearing and social distancing should continue.

"This is just another arrow in the quiver—a way to get us back to normal as soon as possible," Hartstein said.