Employer Guide: 5 Things to Consider Before Implementing a Workplace Vaccine Policy
In order to support workplace health and safety for employees and workplace visitors, some employers may decide to require that all employees, with some exceptions, are fully vaccinated against certain infectious diseases like Covid-19 and provide proof of vaccination.
However, employee vaccine requirements can be difficult to implement. Employers will need to consider many aspects of labor and employment law before implementing a vaccine policy or requirement, including employment discrimination laws and compliance.
This guide addresses five important areas an employer should consider before implementing policies that encourage employees to get vaccinated, offer incentives, and/or provide paid time off for employees to get vaccinated.
Implementing a written vaccination policy
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.
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. 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.
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:
- The FDA’s Emergency Use Authorization for Vaccines Explained
- The CDC’s Covid-19 Vaccination Information Page
- Occupational Safety and Health Administration (OSHA)’s Coronavirus Information Page
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. However, there are some worker protections and compliance requirements to keep in mind.
Medical examinations
In general, under the ADA, employers may administer only 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.
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.
State laws can impose different or additional requirements on medical examinations.
Employee benefits
Although publicly available vaccines are generally 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.
Providing vaccination incentives to employees
Incentives can be a powerful persuader for some to become vaccinated. There are some specific guidelines to follow though.
Coercive incentives
Generally, employers can offer incentives to employees who voluntarily receive a required vaccination or provide proof or documentation that they have received a required 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.
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.
Alternative incentives for employees with accommodations
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.
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 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 (GINA) prohibits employers from offering incentives to employees in exchange for their family medical history.
Monitoring mandated employee vaccinations
Employers can require workers to provide proof of mandated vaccination. Although disability-related inquiries are generally prohibited under the ADA, the Equal Employment Opportunity Commission (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.
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.
Authoritative analysis on labor and employment law
As employers navigate post-pandemic workplace health and safety responsibilities, it’s important to understand how to implement policies that allow their business to be productive while also complying with employment discrimination laws. Download our Sample Employer Infectious Disease Policy as a guide for documenting the specific steps to be taken to safeguard employees’ health and well-being during outbreaks of infectious diseases while ensuring the employer’s ability to maintain essential operations.
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