The attorneys behind the Employer Law Report Blog present the first in a three-part series on the COVID-19 vaccine and employer considerations.

As vaccinations become increasingly available to stop the spread of COVID-19, some  employers are posing the question: Can I require my employees to receive the vaccine in order to make my workplace more safe? The question is somewhat academic right now, since the vaccine is not widely available in most states, but it appears that will change in the weeks and months to come.

The short answer is yes, employers can require their employees to receive the COVID-19 vaccine. There are some reasonable accommodation obligations to consider – more on that in a moment. Before deciding to require employees to have the COVID-19 vaccination, employers should consider possible implications, and may decide to encourage or incentivize, rather than mandate, employee vaccination.

The EEOC says you can mandate COVID-19 vaccination, but must consider reasonable accommodation

In December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released frequently asked questions which provide vaccination-specific guidance for employers. The EEOC recognizes an employer’s right to mandate vaccination as a means to protect others in the workplace. But there are two circumstances in which an employee refusal to have the COVID-19 vaccine triggers the employer’s duty to consider whether any reasonable accommodation can be made for the employee: 1) a disability; or 2) a sincerely held religious belief.

Employers must provide a reasonable accommodation for employees that decline to be vaccinated based on either of those reasons. In those cases, rather than taking an adverse action based on the employee refusal, employers must first consider whether there are alternative measures that would allow the employee to continue to work, while still meeting the employer objective of protecting others from the virus. For example, an employer might offer the employee an alternative working arrangement, such as working remotely or working on an alternative schedule to minimize contact with others.

What are the possible implications of mandating the vaccine?

There are employee relations concerns with mandating vaccination. Some employees may see employer-required vaccinations as an unreasonable intrusion on a personal health decision. Next, requiring employees to be vaccinated increases employer exposure to workers compensation or civil liability claims based on adverse reaction to the vaccine. We will delve more deeply into that question in our second installment in this blog series on the COVID-19 vaccine and employer considerations.

If employers mandate the vaccine, employees may have a legitimate claim that the time spent getting the vaccine is compensable time under federal and state wage and hour laws. Finally, for employees represented by a union, requiring vaccination would be a change in terms and conditions of employment which could be implemented only after bargaining with the union.

If an employer requires employees to receive the vaccination, there are additional Americans with Disabilities Act (ADA) considerations. Even though the EEOC has said that administering the vaccine is not considered to be a medical exam for ADA purposes, certain questions typically asked while administering the vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination, may seek medical information. If these questions were asked by the employer, they would be subject to ADA requirements for medical inquiries directed to employees.  To minimize any ADA risk, it is a best practice to ensure that the responses to any medical questions remain with the vaccine administrator and are not provided to the employer.

Can I incentivize vaccination with paid time off, cash or other perks?

Many employers are considering incentivizing their employees to be vaccinated. Some are offering paid time off for time spent getting the vaccine or monetary bonuses to those that elect to be vaccinated. There is no law prohibiting incentives like these. But there are a few related legal considerations. For example, a cash reward for getting a vaccination would be seen as a non-discretionary bonus and, for non-exempt employees, would have to be figured into the employee’s hourly rate when calculating overtime pay for the period in which it was earned.

To reduce the risk of ADA issues, employers should keep to a minimum the information required from employees to verify that they have been vaccinated. Employers must also consider whether a cash or paid time off incentive to get a vaccine would be a wellness program, subject to review under anticipated EEOC guidelines covering what is a “voluntary” wellness benefit.

We will continue our series on the COVID-19 vaccine and employer considerations on Thurs., Feb. 24 with a blog on workers’ compensation benefits due to potential adverse reactions to the vaccine. Our third installment will publish on Tues., March 2, where we will discuss wellness program guidelines, when they may take effect and the open question of how vaccine incentives may be viewed.

Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.