With vaccinations opening to all adults in Washington within the coming weeks, employers’ most common COVID-19 questions have shifted from how to handle positive cases or exposures at work to how to address vaccinations. Here are answers to the questions that many employers are asking:
In general, the Equal Employment Opportunity Commission (EEOC) has stated that an employer may mandate vaccination. Still, there are several exceptions and other considerations that employers should address before making this decision. First, employers must consider religious accommodations for employees who have sincerely held religious beliefs that prevent them from receiving a vaccine. Second, employers must consider medical accommodations for employees with disabilities that preclude safe vaccination. The process for religious or medical accommodation in the vaccine context is similar to any other workplace condition – the employer may require the employee to provide verification of the religious belief or medical condition that prevents vaccination.
Also, be aware that Washington’s Department of Labor & Industries will allow a workers’ compensation claim for medical expenses and/or time loss due to an employee’s adverse reaction to the vaccine if the employer mandated the vaccine. Workers’ compensation claims for adverse vaccine reactions will not impact employers who merely incentivize vaccination.
A vaccine requirement is only truly a mandate if the employer is willing to enforce it as such, which means disciplining and even terminating an employee who (without accommodation) refuses to be vaccinated. Because this would create a work rule that could ultimately impact an employee’s continued employment, unionized employers would need to bargain before implementing it. It is a mandatory subject of bargaining.
Finally, note that the COVID-19 vaccines have been approved for emergency use only; they are still in trials and do not have general use approval yet. This approval type sets up likely litigation to determine whether the EEOC’s guidance allowing mandatory vaccination is actually appropriate. At least one lawsuit has been filed so far this year, with the plaintiff employee stating that employers cannot force their employees to be human guinea pigs for experimental vaccines. Until this and likely future lawsuits resolve, employers may choose to rely on the EEOC’s guidance allowing for mandatory vaccination programs. However, they must keep in mind that litigation could ultimately require a reversal of that guidance.
Before implementing any mandate, employers should consider all risks and weigh their risk tolerance against the need in their particular workplace for most or all employees to be vaccinated. Among the risk analysis, consider whether solid procedures are in place to ensure that no unintentional discrimination occurs for employees who would be entitled to accommodation. Also, consider how management and employees would react if the employer had to make the untenable decision to terminate a good employee because they have an aversion to the vaccine that the employer can’t address through a religious or disability accommodation process. For most employers, those risks likely outweigh the benefit of achieving a fully vaccinated workforce; however, it is a decision and analysis that each employer must make considering its unique circumstances.
Employers who wish to incentivize employees to receive the vaccine must be cautious not to exceed EEOC enforced limitations on wellness incentives. In January, the EEOC proposed rules suggesting that they would consider anything more than a small incentive (e.g., a water bottle or a small gift card) to be too much under the Americans with Disabilities Act (ADA). But in the change of presidential administration in January, those proposed rules were first frozen and then withdrawn, leaving employers to wonder again how much incentive is too much.
An incentive that does not discriminate among employees based on a medical condition or disability status, such as a couple of hours of paid leave for all employees that they may choose to use to get vaccinated, is an incentive with low risk to an employer. For example, many employers are providing employees with paid leave that they may only use to get vaccinated. This type of incentive is not zero risk because it is a benefit tied to a wellness activity and is not available to those who can’t or don’t participate in the activity (in this case, being vaccinated). It is relatively low risk, however, as compared to the riskier move of providing a monetary incentive.
Employers are also considering token incentives such as small gift cards for employees who receive the vaccine. This practice also carries some risk that increases with the value of the gift card incentive. Mitigation of the risk is possible by allowing alternate means to receive the incentive for employees who have an accommodation preventing the vaccine. For example, those employees could receive the gift card by watching a training video related to COVID-19 safety practices.
Also, keep in mind that offering the above incentives requires the employer to gather documentation showing the employee did get the vaccine. Retain this documentation in a secure file separate from the employee’s personnel file since it contains employee medical information.
Effective April 1, 2021, the American Rescue Plan Act added two vaccine-related reasons for leave that would be covered as emergency paid sick leave under the FFCRA:
Additionally, the Rescue Plan extends all of the reasons – including these new vaccine-related reasons – covered by emergency paid sick leave to emergency family and medical leave.
Keep in mind that the Rescue Plan does not require employers to offer this extended FFCRA benefit; it merely allows employers who do so to continue taking advantage of the tax credits for allowing the leave. Additionally, employers may opt to continue providing emergency paid sick leave but not emergency family and medical leave. However, whatever the employer decides, all of the specific requirements of the type of FFCRA leave the employer allows – whether emergency paid sick leave, emergency family and medical leave, or both – must be followed. So, an employer who has chosen to extend those benefits to employees voluntarily must offer FFCRA time off for employees to obtain the immunization and recover from any illness related to receiving the vaccine.
The CDC is continually updating its guidance concerning quarantine requirements for fully vaccinated individuals. The CDC considers individuals to be fully vaccinated if it has been at least two weeks since their second dose of the Moderna or Pfizer vaccine or their single dose of the Johnson & Johnson vaccine.
As of April 2, 2021, the CDC states that fully vaccinated individuals:
Despite these loosened quarantine restrictions, fully vaccinated individuals should continue to watch for symptoms and follow all other safety protocols (such as wearing face coverings and practicing physical distancing). Note that workplace safety rules, including face-covering requirements and physical distancing, have not been lifted for any employees, including those fully vaccinated. Given this and the fluid nature of this situation in general, employers should also consider whether they want to adopt this new guidance in their daily screening protocols. Archbright has elected not to update our sample screening form or online tool at this time.
Since guidance is constantly evolving, employers who allow such employees to return to work without quarantining should document that the employee is fully vaccinated and that the employer followed the CDC guidance that was in place at the time.
Governor Inslee’s proclamation protecting high-risk employees in Washington remains in place, without any modification or exception for vaccinated employees. Therefore, under the plain terms of the proclamation, it would be risky for an employer to terminate a high-risk employee who refused to return to work even after being fully vaccinated. Employers should, however, maintain communication with these workers and reiterate the employer’s emphasis on workplace safety, as well as the efficacy of the vaccine, to encourage their voluntary return. As more and more workers – both high risk and not – are vaccinated, the workplace is presumably becoming safer for all employees to return.
Eligible members are encouraged to access the mozzo Resource Library for additional information, including sample vaccination policies, and contact an Archbright HR Advisor with any questions.