Currently, three vaccines are authorized and recommended in the United States to prevent COVID-19. At this time, anyone 16 or older in New York State can get a first dose COVID-19 vaccine without an appointment at any state-run mass vaccination site. According to the CDC, the vaccines are safe, effective, reduce the risk of severe illness, and are available at no cost.
HR Works has compiled a list of frequently asked questions as it relates to vaccines and the workplace. Clients should consult with HR Works and their legal counsel before modifying COVID-19 related employment policies and procedures now that vaccines are available for most Americans.
Can we mandate that our employees get a COVID-19 vaccination?
An employer that chooses to mandate employee vaccinations must be able to justify a true business necessity to obtain the vaccine, which may be applicable depending on industry. The Equal Employment Opportunity Commission (EEOC) defines “business necessity” as necessary to the safe and efficient performance of the job. Many labor attorney firms recommend that businesses strongly encourage employees to get vaccinated rather than making it a requirement. Employers should be prepared to provide reasonable accommodations to those who choose to decline the vaccination for reasons such as a disability or sincerely held religious beliefs. Situations where an individual declines a vaccine for medical reasons should be treated like any other accommodation request under the Americans with Disabilities Act (ADA) which may require employers to engage in the interactive process and provide a reasonable accommodation unless doing so would be considered an undue hardship. Situations where an individual declines the vaccine for religious reasons will also require employers to provide a reasonable accommodation in accordance with Title VII of the Civil Right Act of 1964.
Employers who mandate the vaccine may also trigger OSHA reporting and recording requirements if an employee experiences an adverse reaction. OSHA’s guidance explains that an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related; (2) a new case; (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work; restricted work or transfer to another job, medical treatment beyond first aid)”; and (4) the vaccine is required for employees.
Can we require employees to provide proof of vaccination status? Isn’t this a HIPAA issue?
Employers may request proof of vaccination status but should ask employees not to provide any unnecessary medical or personal information as part of the proof. Any disability related information that is disclosed either in writing or verbally because of the request for proof may be subject to the ADA.
HIPAA privacy laws rarely apply in the employment context, and generally apply to covered entities, rather than individuals. However, employers have an obligation to protect any health-related information provided by an employee. Generally, any health or private information provided by employees needs to be kept confidential to the extent possible by employers, and documentation of any health-related information should be kept separate from an employee’s general personnel file.
Employers who require proof of vaccination status must also ensure that such a policy is implemented consistently and applied to all employees to avoid claims of discrimination.
Can we provide incentives for employees to get vaccinated?
Employers should exercise caution when considering a vaccination incentive program. Incentives for vaccinations could be perceived as discriminatory toward employees who cannot get vaccinated for health or religious reasons. To reduce claims of discrimination, employers may want to offer these employees another way to earn the incentive, such as attending a COVID-19 safety class. Employers who choose to implement a vaccination incentive program should clearly define the program as voluntary, avoid collecting any personal health information as part of the program, and consider wage and hour implications such as nondiscretionary bonus and tax rate requirements.
Our staff is mostly or entirely vaccinated – now what?
Experts need more time to understand the protection that COVID-19 vaccines provide before deciding to change most recommendations. The CDC and New York State (along with several other states) have not yet eased employer related guidance which requires daily health screenings, mask wearing in the workplace, and socially distant work areas. In many respects, most employers should continue to maintain all COVID-19 protocols at this time, even with a mostly or fully vaccinated workforce. Employers can consider allowing fully vaccinated employees to resume business travel, both domestic and international. In addition, fully vaccinated individuals who have been exposed to COVID-19 and remain asymptomatic may have reduced quarantine requirements.
How can I get more information on workplace safety protocols and vaccinations?
Subscribers of the HR Works Virtual Helpline may contact email@example.com for additional information, and HR Strategic Services clients may contact their Human Resource Strategic Partner (HRSP).
Employers who are not subscribers to either of these services may contact HR Works at firstname.lastname@example.org for a referral to a HR Works Business Development team member.