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Vaccinations – Critical Considerations for Employers and Policy Guidelines

EverythingHR Staff | 02/19/2021 | Blog, Featured

The question of whether “to vaccinate or not to vaccinate” is by no means new.  The debate surfaces with each annual flu strain and periodically with other viruses and communicative health threats.  Identifying a rolling out a compliant strategy that is appropriate for a particular workplace, workforce, industry and location is a huge challenge currently faced by pretty much all employers nationwide. Now though, as restrictions appear to be relaxing and workers begin returning to the workplace the question becomes one of “to mandate vaccinations or not to mandate vaccinations.

The December 16, 2020 EEOC guidance on this topic did indicate that employers can require employees to be vaccinated.  Is it the best course of action is the real question now.  As part of the decision-making process, all employers should be familiar with the EEOC guidance which can be found here EEOC Guidance on Vaccinations

We know that every employer benefits from promoting and facilitating a healthy workplace. Yet in some industries the need to maintain healthy workers goes beyond simply preserving productivity and morale. In such cases, employers may have legitimate business interests for mandating that certain at-risk staff be vaccinated against common communicable diseases such as COVID-19, influenza, measles, and hepatitis.

Brainstorming and white-boarding are essential steps in the process of developing an approach; but, eventually, a decision needs to be made and a policy needs to be put in writing and distributed.  Please continue to our blog for a detailed discussion of the many considerations necessary for drafting a policy.  We are including several sample policies that are intended as models for review and are not provided in any way as legal advice or as a recommendation for verbatim distribution to employees.

 

Vaccinations – Workplace Considerations

Background

Every employer benefits from promoting and facilitating a healthy workplace. Yet in some industries the need to maintain healthy workers goes beyond simply preserving productivity and morale.

For example, for those who work in healthcare or who work with children, ensuring that workers are free of and protected from communicable illness may be required to protect patients and clients, to shield the employer from liability, and to maintain business licensure and regulatory compliance.

In such cases employers may have legitimate business interests for mandating that certain at-risk staff be vaccinated against common communicable diseases such as influenza, measles, and hepatitis.

Tips and Considerations

If your company chooses to inquire about or mandate employees’ vaccination status, there are several important considerations to keep in mind:

Purpose of the policy. As with any policy, consider your goal and let that guide the language and requirements you choose. Is your intent simply to promote a healthy workplace and reduce the spread of illness or are you bound by industry-specific regulations that require certain staff to prove immunization? Policies that simply intend to promote good health within the company should be more permissive and should encourage, rather than require, vaccination. Policies developed for business-related and regulatory purposes may impose stricter, mandatory requirements.

Morale. Healthcare decisions are extremely personal, so it is generally best for them not to be brought into the employment dialogue in the first place. Yet for some employers, the worker’s personal health decisions and the safety of the workplace are too closely intertwined for the topic to be ignored. Nonetheless, employers must approach the topic carefully and should be respectful of employees’ autonomy and medical privacy. Employers should not require more (whether information or immunization compliance) than is absolutely necessary to serve the needs of the workplace.

Applicable law. Many states have industry-specific or public health regulations that require hospital workers, childcare workers, emergency services personnel, and similar health and safety personnel to show proof of immunity (which may include vaccination) to a list of common communicable diseases. Workers who travel overseas for work may also be required to obtain certain immunizations before international travel will be permitted. On the other hand, state and federal laws that prohibit discrimination based on disability and religious belief may offer exemptions or require accommodations for workers whose medical conditions or religious beliefs prevent them from obtaining vaccines. Be sure to review applicable laws in your areas of operation.

Consequences for noncompliance. The reason for which you have adopted an immunization policy should drive the severity of penalties for noncompliance with that policy. Employers that would face fines, loss of licensure, or legal liability for failure to maintain an immunized workforce may choose to adopt strict penalties, up to and including termination. Other employers may opt to restrict unimmunized workers from certain high-risk areas or activities—or to place employees on leave—during a period of policy noncompliance or local contagion.

Available accommodations. Consider whether there may be accommodations available to employees who are unable to be immunized. Accommodations may include requiring unimmunized workers to wear surgical masks when interacting with others, restricting workers from high-risk areas, temporary reassignment of nonessential job duties, telecommuting, leaves of absence, and other similar solutions.

  • Positions. Your policy should designate which workers will be required (and/or which will be encouraged) to be immunized. Some workers, even in high-risk workplaces such as hospitals, may have little to no interaction with patients or clients and may not need to be included in the policy.
  • Definition. Consider how employees may establish immunity. For example, for some illnesses, employees may be considered immune if born before a certain date or if they can provide proof of having previously had the illness in question. Employers may need to consult applicable law and regulations for guidance.
  • Communicable illnesses. Your policy should set forth which diseases employees are expected to be immunized against. For simplicity, this may be based on a separate document of reference, for example, a list provided by the local department of public health or the Centers for Disease Control and Prevention (CDC). Your policy should also set forth who will decide when additional immunizations are required and how notice will be provided to employees.
  • Cost. Some employers make immunizations available to the employee at no or discounted cost or make it more convenient for employees by creating an opportunity for employees to receive vaccinations at the workplace.
  • Guidance regarding the COVID-19 vaccine. The Equal Employment Opportunity Commission (EEOC) issued guidance for employers regarding the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act (PDA), the Genetic Information Nondiscrimination Act (GINA), and the COVID-19 vaccine. The EEOC noted that the laws do not interfere with or prevent employers from following CDC or other health authorities’ guidelines and suggestions.

With regard to the ADA, the EEOC advised that administration of the COVID-19 vaccine is not considered a medical examination under the ADA. However, prescreening vaccination questions may implicate the ADA’s provision on disability-related inquiries so if an employer asks prescreening questions because it is administering the vaccine (or has contracted with a third party to provide the vaccine), it must show that prescreening questions are job-related and consistent with business necessity. Any medical information obtained must be kept confidential as required under the ADA.

NOTE: The EEOC advised that asking an employee for proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. However, any follow-up questions about why the employee did not obtain the vaccination would likely be considered disability-related inquiries.

If an employer’s safety-based qualification standard (e.g., a vaccination requirement) screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  According to the EEOC, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite by exposing others to the virus, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local laws. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to work remotely or may be eligible to take leave under the FMLA or the employer’s leave policies.

The EEOC’s guidance further noted that managers and supervisors should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.

The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may affect the undue hardship consideration. Employers may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN’s website has materials specific to COVID-19.

Legal Points

  • Disability discrimination laws. Some workers may be medically prevented from obtaining vaccinations due to a medical condition (examples may include allergy to substances used in the vaccine, contraindication with medical treatments such as chemotherapy or prescription medications, and immunosuppression). These workers may be entitled to protection and accommodation under the ADA and state law equivalents.
  • Preemployment inquiries. In addition to providing protection from disability discrimination, the ADA also restricts employers’ ability to make disability-related inquiries and conduct medical tests (including immunity tests). Inquiries and examinations may not be made before a conditional offer of employment is extended. When an employment offer has been made, but before employment begins, disability-related inquiries and medical exams are permitted if they are made uniformly of all entering employees in the same job category. After hire, disability-related inquiries and medical examinations are prohibited unless they are job-related and consistent with business necessity.
  • Religious discrimination laws. Some workers object to the use of vaccines as conflicting with their sincerely held religious beliefs. These workers may also be protected from discrimination and entitled to religious accommodations under Title VII or state law equivalents.
  • Pregnancy. Employees may also be medically unable to receive vaccines during pregnancy, so pregnant workers may request exemptions or accommodations. Employers should consider the federal PDA and comparable state laws, as discrimination could occur if a pregnant employee is denied a vaccine exemption or accommodation, but a comparable exemption is granted to a worker who is not pregnant.
  • Workers’ compensation. Workers who are administered vaccines in the course and scope of employment and who suffer illness or injury because of the vaccine may be entitled to workers’ compensation benefits.
  • Confidentiality of medical records. All medical information, including records of immunity or vaccination, must be kept confidential and must be maintained separately from other personnel records.
  • Employment contracts. Workers with employment contracts may have additional rights under the terms of the employment agreement.
  • Union workers. Similarly, unionized employers bound by collective bargaining agreements may have additional obligations and limitations when requiring vaccines from union members. Employers must consult the terms of the collective bargaining agreement for details.

Sample Policy

Subject: COVID-19 Vaccine  

[Employer] promotes a safe and healthy workplace for its employees and seeks to prevent the spread of vaccine-preventable diseases to employees, customers, and the community.

All employees are encouraged to receive a COVID-19 vaccination. [Employer] will facilitate receipt of the COVID-19 vaccine at no cost through on-site clinics or collaboration with a local provider.

[Optional language: Employees who have questions about the COVID-19 vaccine are encouraged to review fact sheets from the U.S. Centers for Disease Control and Prevention (CDC). (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/facts.html for fact sheets which may be printed and posted with policy or included with distributed policy).]

Employees who are unable to receive a COVID-19 vaccination, whether for medical or religious reasons, must contact [appropriate Human Resources manager] to determine whether a reasonable accommodation may be made.

All records related to employee vaccinations will be maintained in a confidential file, separate from regular personnel files.

This policy will be interpreted to be and applied in accordance with all applicable local, state, and federal laws.

Any questions about this policy should be directed to the Human Resources department.

[Optional language for healthcare employers: While all employees are encouraged to maintain immunization to common communicable diseases, employees who have the potential for exposure to patients with vaccine-preventable diseases may be required to demonstrate proof of immunity to COVID-19 in the interest of patient/client safety and compliance with public health regulations.]

Employees who are required to demonstrate proof of immunity will be notified of this requirement by [management/human resources]. Covered employees may include, but are not limited to, [list of job categories for which immunization is job-related].

Based on the recommendations of the Centers for Disease Control and Prevention (CDC), [Employer] will require notified employees to demonstrate proof of adult immunization for COVID-19.

[Employer] reserves the right to require additional immunizations as needed to protect staff, clients, and the community, and to comply with applicable law. Affected employees will be notified of additional immunization requirements in writing.

Proof of immunity may be established by providing documentation of immunization that complies with CDC guidelines for each covered illness. Depending upon the illness, immunization may be established based on:

  • Written documentation showing receipt of required vaccine doses to establish immunity.
  • Documentation of having had the illness previously and established immunity.
  • Medical test results establishing the presence of antibodies.

[Employer] will also facilitate receipt of the COVID-19 vaccines at [no cost/a discount] through on-site clinics or collaboration with a local provider.

Employees who are unable to obtain the required COVID-19 vaccination, whether for medical or religious reasons, must contact [appropriate human resources manager] to determine whether exemption or accommodation may be made. Employees must not presume exemption from the immunization requirements without first consulting with the human resources department.

Employees who otherwise refuse to comply with this policy may be placed on unpaid leave pending a final determination of employment status.

All records related to employee immunizations will be maintained in a confidential file, separate from regular personnel files. This policy will be applied in accordance with all applicable local, state, and federal laws.

Employees who have questions or concerns about this policy should contact [appropriate human resources personnel] for further details.

 

 

Sample Policy

Subject: Immunizations

[Employer] promotes a safe and healthy workplace for its employees and seeks to prevent the spread of vaccine-preventable diseases to employees, customers, and the community.

All employees are encouraged to receive a vaccination for:

  • Influenza (1 dose required annually)
  • Measles, mumps, rubella (MMR)
  • Hepatitis B
  • Tetanus, diphtheria, pertussis
  • Varicella (chickenpox)
  • [Others]

Employees who are unable to receive a vaccination for any of the diseases listed above, whether for medical or religious reasons, should contact [appropriate Human Resources manager] to determine whether a reasonable accommodation may be made.

All records related to employee vaccinations will be maintained in a confidential file, separate from regular personnel files.

This policy will be applied in accordance with all applicable local, state, and federal laws.

Any questions about this policy should be directed to the Human Resources department.

[Optional language for healthcare employers: While all employees are encouraged to maintain immunization to common communicable diseases, employees who have the potential for exposure to patients with vaccine-preventable diseases may be required to demonstrate proof of immunity to vaccine-preventable diseases in the interest of patient/client safety and compliance with public health regulations.

Employees who are required to demonstrate proof of immunity will be notified of this requirement by [management/human resources]. Covered employees may include, but are not limited to, [list of job categories for which immunization is job-related].

Based on the recommendations of the Centers for Disease Control and Prevention (CDC), [Employer] will require notified employees to demonstrate proof of adult immunization for the following communicable illnesses:

  • Influenza (1 dose required annually)
  • Measles, mumps, rubella (MMR)
  • Hepatitis B
  • Tetanus, diphtheria, pertussis
  • Varicella (chickenpox)
  • [Others]

[Employer] reserves the right to require additional immunizations as needed to protect staff, clients, and the community, and to comply with applicable law. Affected employees will be notified of additional immunization requirements in writing.

Proof of immunity may be established by providing documentation of immunization that complies with CDC guidelines for each covered illness. Depending upon the illness, immunization may be established based on:

  • Written documentation showing receipt of required vaccine doses to establish immunity.
  • Date of birth (limited to illnesses for which immunity is presumed for persons born before a certain date).
  • Documentation of having had the illness previously and established immunity.
  • Medical test results establishing the presence of antibodies.

[Employer] will also facilitate receipt of the following vaccines at [no cost/a discount] through on-site clinics or collaboration with a local provider:

  • Influenza (1 dose required annually)
  • Measles, mumps, rubella (MMR)
  • Hepatitis B
  • Tetanus, diphtheria, pertussis
  • Varicella (chickenpox)
  • [Others]

Employees who are unable to obtain any or all of the required immunizations, whether for medical or religious reasons, must contact [appropriate human resources manager] to determine whether exemption or accommodation may be made. Employees must not presume exemption from immunizations without first consulting with the human resources department.

Employees who otherwise refuse to comply with this policy may be placed on unpaid leave pending a final determination of employment status.

All records related to employee immunizations will be maintained in a confidential file, separate from regular personnel files. This policy will be applied in accordance with all applicable local, state, and federal laws.

Employees who have questions or concerns about this policy should contact [appropriate human resources personnel] for further details.