Practical Guidance

Vaccine Policy Guide for Employers

December 29, 2021
Vaccine Policy Guide for Employers

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In order to provide a safe work environment for employees and workplace visitors, some employers may decide to require that all employees, with some exceptions, are fully vaccinated against Covid-19 and provide proof of vaccination.

However, vaccine requirements can be difficult to implement. Employers will need to consider many factors before implementing a vaccine policy or requirement.

This guide addresses those factors, including any policy that encourages employees to get vaccinated, offers incentives, and/or provides paid time off for employees to get vaccinated.

[Find information about the legal implications to reopening your office or worksite.]

Download: Fast Answers on Covid and ADA

This helpful guide will help answer your questions about Covid-19 vaccination requirements and the ADA.

Guide to Employer Vaccine Policy Considerations

I. Consider implementing a written vaccination policy.

A vaccine policy will clearly state the vaccination rules for employees and ensure there is no ambiguity or assumption when it comes to working and their employment requirements.

Some specific considerations:

  • Employers are not required to implement written vaccination policies. However, a policy can ease some of the uncertainty facing workers preparing to return to their worksite.
  • Policies should clearly communicate employer practices and expectations and include a description of how employees can get more information.
  • Employers that do implement vaccination policies should consider the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Occupational Safety and Health Act, and the Employee Retirement Income Security Act (ERISA) along with relevant state and local laws when creating and implementing policies.

II. Consider providing information to employees about vaccine safety and distribution.

Employers should consider providing information, including links to relevant government websites, to help employees understand vaccine safety, how to get vaccinated, and post-vaccination recommendations.

  • Below are some links to include in the information you provide to employees about vaccine safety and distribution:

i. The FDA’s Emergency Use Authorization for Vaccines Explained

ii. The CDC’s Covid-19 Vaccination Information Page

iii. OSHA’s Coronavirus Information Page

III. Consider offering on-site or employer-provided vaccinations.

If you are requiring your employees to be vaccinated, providing them with the means to become easily vaccinated to return to work may be a solution worth pursuing.  There are some considerations in doing this.

  • In general under the ADA, employers may only administer medical examinations that are job-related and consistent with medical necessity.
  • The screening questions asked before vaccinations are considered medical examinations under the ADA, but employers that offer voluntary vaccinations do not have to comply with the job-related/business necessity requirement.
  • If employers administer vaccines or contract with a third party to administer vaccines, employers cannot retaliate against, intimidate, or threaten employees who refuse to answer medical screening questions. See EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
  • State laws can impose different or additional requirements on medical examinations.

Comment: If employees are administered a vaccine by a third party that does not have a contract with the employer, the ADA provisions related to health examinations do not apply.

Although the Covid-19 vaccines are considered safe, there have been some documented adverse reactions. Workers who are injured may be entitled to workers’ compensation benefits, which are governed by state law.

  • In certain situations, employer-provided vaccine programs can qualify as a benefit plan under ERISA. ERISA plans are subject to reporting and disclosure among additional requirements.

IV. Consider providing vaccination incentives to employees

Incentives can be a powerful persuader for some to become vaccinated. There are some specific guidelines to follow though.

  • Generally, employers can offer incentives to employees who voluntarily receive a Covid-19 vaccination or provide proof or documentation that they have received a Covid-19 vaccination.
  • However, employers that administer vaccines to their workers, such as through a wellness program or vaccine program, must ensure that incentives are not coercive. Incentives that are too desirable can make employees feel pressured to disclose private health information that is protected by the ADA.

Comment: The regulations regarding wellness plan incentives are still evolving. In early 2021, the EEOC issued proposed regulations that would limit the value of any incentives to a “de minimis” value, such as water bottles and low-value gift cards. Those regulations, which held that high-value incentives could be coercive, are currently on hold pending review by the Biden administration.

A 2016 regulation that limited wellness plan incentives to 30% of the cost of self-only coverage under the employer’s health plan was struck down. Existing wellness plan guidance requires that employers provide alternatives for employees who are unable to get vaccinations because of disability. For example, an employee could be allowed to undergo additional safety training to receive the incentive.

  • Unlike incentives offered for employer-provided vaccinations, incentives offered for proof of third-party vaccination, such as vaccination by a doctor or pharmacy, are not subject to any value limitation. Employers that are subject to the ADA, Title VII, or similar state or local laws may be required to provide accommodations or alternative means of compliance for employees who are unable to get vaccinated because of a disability or unwilling to get vaccinated because of a religious belief.
  • Title VII requires employers to provide accommodation for employees’ religious beliefs and employers should consider offering alternatives for employees who refuse vaccinations for religious reasons.

Incentives to family members:

Employers can offer incentives to employees who voluntarily provide proof that a family member received a Covid-19 vaccine from a third party. However, employers cannot offer incentives to encourage employees’ families to receive employer-provided vaccines. Pre-vaccination screening involves a person’s medical history and the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees in exchange for their family medical history.

V. Consider how mandated employee vaccinations will be monitored.

  • Employers can require workers to provide proof of mandated vaccination. Although disability-related inquiries are generally prohibited under the ADA, the EEOC released guidance clarifying that requiring proof of vaccination is not a medical inquiry and is permitted under the law.
  • Employers must keep all information obtained from employees about their health or vaccination status confidential. Any files or records of workers’ vaccination status must be maintained separately from employee personnel records.

Comment: Although the ADA does allow employers to share disability and health information with managers in certain situations, employers should be cautious about sharing employee vaccination status and vigilant in monitoring and responding to disability-based harassment in the workplace.

Bloomberg Law provides additional resources related to Covid considerations under the ADA.