Q&A with Sherry Travers and Brittaney Davis, Littler Mendelson, P.C.
As COVID-19 vaccines become more widely available, employers face numerous challenges relating to workplace vaccination policies and programs. Below, Littler Mendelson, P.C. answers some of the most commonly asked legal questions about vaccination.
ENCOURAGING VS REQURING
Can an employer mandate vaccination? What happens if an employee refuses? If employees protest the vaccine mandate with other employees, is that “protected concerted activity”?
Employers have the right to mandate that an employee receive a COVID-19 vaccination; however, there are some limited exceptions to that rule. Vaccine exceptions include employees who have religious or medical-related objections to the vaccine and may have to be reasonably accommodated because of those objections. Another exception is for pregnant employees because pregnant women were not part of the vaccine’s clinical trials so it is unknown how the vaccine might affect them and/or their unborn child. There is also an exception for minors, depending on their age and the vaccine that is to be administered.
Because of the pandemic, federal employment laws and government agencies allow employers greater latitude about what they can mandate regarding vaccines and other health-related issues. This latitude is, however, temporary so employers should think about whether they want to mandate vaccines now when the law may require them to rescind that mandate after the pandemic is over.
The National Labor Relations Act (NLRA), which regulates both unionized and non-unionized workplaces, provides that employees have the right to jointly engage in discussions and protests about the terms and conditions of their employment – that could be wages, vacation pay, or work schedules, as well as vaccines. If an employer has two or more employees joining together to express verbal or written concerns about a vaccine mandate, the employer should consult with their employment counsel to ensure that the employees’ conduct is not protected activity under the NLRA. If it is, and the employer takes adverse action against the objecting employees, the employer could be charged with an Unfair Labor Practice.
With all this said, most employers outside of the healthcare industry are not mandating vaccination.
If we require or encourage vaccination, are we liable if an employee suffers an adverse reaction to the vaccine?
If an employer mandates vaccination, and an employee suffers adverse effects from it, the employer should have the employee file a workers’ compensation claim because the injury/illness occurred in the course and scope of the employee’s work.
If an employer only encourages vaccination, and vaccination is truly voluntary, the employer should not be responsible for any adverse effects the employee may suffer.
To address these liability concerns, a number of states have already enacted COVID-19 liability laws that shield employers and other businesses from liability for any actions they take in conformance with federal, state and local COVID-19 orders, rules and guidance. Governor Abbott has asked the Texas legislature to enact such a law while they are currently in session.
Can we give employees incentives to get vaccinated? What incentives, if any, can we provide? Can we pay our employees to be vaccinated?
Employers may use incentives to encourage employees to get vaccinated. They can offer a wide variety of incentives such as tokens that acknowledge those that have been vaccinated, paid time off, healthcare plan premium discounts and even cash payments. However, employers will want to be careful when crafting incentive programs because of the different compliance hurdles to overcome. We recommend employers consult with their employment counsel before adopting a vaccination incentive program.
HR CONSIDERATIONS
Is it legal for employers to only staff or hire a vaccinated employee? Can they put a vaccination requirement in job descriptions or give vaccinated employees preference in hiring?
Generally, employers should refrain from only hiring or staffing vaccinated employees. While this may seem harmless, it is likely to have a disparate impact on those employees who are disabled, pregnant or likely to have a religious objection that prevents them from being vaccinated. This can give rise to liability under various anti-discrimination laws like the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964 and even the Pregnancy Discrimination Act.
Additionally, legislatures around the country, including here in Texas, are considering bills that if passed would prohibit employers from refusing to hire or taking adverse employment actions such as suspensions and terminations just because employees refused to receive a COVID-19 vaccine.
Legally, you are allowed to include a vaccination requirement, but it is not a good idea to do so. Businesses should keep in mind that the latitude they currently have with regard to vaccination policies is only because we are in a pandemic. Anything employers do right now may have to be relaxed or rescinded once the pandemic is over. In addition, qualified applicants or current employees who fall within the exceptions described above might be inadvertently excluded from hiring or promotional opportunities because they are not vaccinated.
Can we separate, discipline or reassign an employee based on their unwillingness to be vaccinated?
Possibly. Before making any disciplinary or termination decisions, it is critically important to understand the reason for the employee’s unwillingness to be vaccinated. Does the employee have a disability that prevents or restricts him or her from being vaccinated? Is the employee a minor, pregnant or breastfeeding? Has the employee asserted a religious objection to the vaccine? If the answer to these questions is “yes” then the employer may be required to provide the employee with a reasonable accommodation for the disability or religious belief, practice or observance. If no reasonable accommodation is possible, the employee may be excluded from the workplace. But note, excluding an employee from the workplace does not mean the employer may automatically terminate employment. Perhaps, the employee could be excluded from the workplace by working from home, on a less-populated shift or in a different part of the workplace. Discipline should really be a last resort when an employer has an employee who has demonstrated an unwillingness to be vaccinated.
What employee privacy and confidentiality concerns should employers consider with regard to vaccinations?
Although the EEOC’s recent guidance indicates that the federal agency does not consider the record of COVID-19 vaccination itself to be a confidential medical record, vaccination status potentially could constitute health information under some states’ laws. Therefore, employers should provide reasonable safeguards for protecting the privacy of vaccination records. These safeguards should minimally include segregating such data from employees’ personnel files, strictly limiting access to such data, and establishing guidelines for disclosing information about immunization status when permitted to do so by law.
What legal risks are there for employers considering offering on-site vaccination, or inviting a third-party to administer the vaccine?
The CDC recently issued guidance encouraging onsite vaccination programs for large employers only, while recommending off-site vaccination programs for small to mid-size employers. The rationale for these differing recommendations is that large employers generally have the facilities and staffing to better manage an on-site program while the opposite is true for smaller employers. For example, large employers typically have an on-site medical clinic staffed by trained medical personnel who can, among other things, legally administer vaccines. In addition to being properly licensed, the clinical staff is also well-versed in medical privacy laws and, therefore, better able to recognize and safeguard an employee’s health information obtained during the employee’s pre-screening to determine if they should receive the vaccine.
Small to mid-size employers may lack the medical facilities and staff many large employers have and so are better off contracting with a vendor to provide vaccinations off-site or, alternatively, permitting employees to choose an offsite clinic, drug store or other non-company facility at which to receive the vaccination.
Littler is the largest global employment and labor law practice, litigating, mediating, and negotiating some of the most influential employment law cases and labor contracts for more than 75 years.
For more information about COVID-19 vaccines in the employment context, contact Brittaney Davis at BNDavis@littler.com or 214.701.8880 or Sherry Travers at stravers@littler.com or 214-507-5571.