What Employers Need to Know about the COVID-19 Vaccine
January 19, 2021
WHAT EMPLOYERS NEED TO KNOW ABOUT THE COVID-19 VACCINE
In December, 2020, the EEOC updated its technical assistance guide addressing COVID-19, the ADA and other EEO Laws as they relate to the COVID-19 vaccine. In this guidance, it confirmed that the vaccine is not a medical exam, and appears to authorize employers mandating employees to receive the COVID-19 vaccine, subject to certain exceptions. These include the requirement to consider reasonable accommodation for medical disabilities that prevent an employee from being able to receive the vaccine, and to accommodate religious beliefs that prevent it.Although employers may have the right to mandate employees receive the COVID-19 vaccine, perhaps the better question is whether it is the best course of action at this time. The majority of employers surveyed by SHRM recently indicated that instead of mandating the vaccine, they would be implementing a voluntary program. Many employers are also implementing educational programs to provide employees with complete information about the effectiveness and potential risks of the vaccine.
This is a situation in which the “carrot” approach may be more beneficial than the “stick” approach. Employers should consider offering incentives, such as paid time off in order to receive the vaccine, or other incentives such as added PTO hours, in order to motivate employers to receive the vaccine. Some employers are choosing to offer the vaccine on a voluntary basis at first, and may make it mandatory if not enough employees choose to get vaccinated. Similarly, some employers are choosing to make it voluntary until the FDA changes the authorization of the vaccine from the Emergency Use Authorization (EUA) to a full formal approval of the vaccine.
The EEOC also confirmed that employers may request employees to provide proof of vaccination. This would obviously apply in situations in which the employee receives the vaccine at a location other than a clinic set up on site by the employer.
The EEOC also confirmed that employers may request employees to provide proof of vaccination. This would obviously apply in situations in which the employee receives the vaccine at a location other than a clinic set up on site by the employer.
HOW AND WHEN CAN MY EMPLOYEES RECEIVE THE VACCINE?
The largest questions we are receiving from employers are about when and how their employees will be able to receive the vaccine. At this time, this is being handled through the state and county health departments. Employers should regularly monitor the state and county health department websites as they will indicate when new groups become eligible for the vaccine and will provide a link for employers to contact them to get information about how to start the vaccination process for their employees.
At the Iowa Department of Public Health, the Infectious Disease Advisory Council is responsible for setting up the specific categories for vaccine recipients. The timeline and definitions for who is included in each of the categories can be found at this link: https://idph.iowa.gov/Emerging-Health-Issues/Novel-Coronavirus/IDAC. You should also closely monitor your county’s department of health website for more local information.
Once the industry or category that applies to your business becomes eligible, the employer will be told which pharmacies are set up to provide the vaccine for their employees, and how to go about scheduling those vaccinations. For some large employers, the state or county department of health will set up to have on-site clinics to administer the vaccines.
It’s important to note that, for the most part, the vaccines will be administered under a plan organized by the state or county health departments, and the employers will not be contracting directly with the health care providers. This will eliminate the issue that may arise when a clinic contracted by the employer asks pre-screening questions, which may implicate the ADA or other legally protected information. At this time, employers and employees are not being charged for the vaccine itself, but employees may see a small charge for the administration of the vaccine come through their health insurance.
This is a rapidly evolving situation, and more changes are expected as we transition to a new administration at the federal level. So, watch the news, social media and state and county health departments daily so that you will know when and how you may begin the vaccination process for your employees.
If you need help deciding what type of vaccination program you will implement in your workplace, our team of employment lawyers can help you develop a plan that best fits your organization’s needs.
Attorney Author
Terri C. Davis
Terri C. Davis is an Attorney and Senior Vice President at Shuttleworth. She focuses her practice in Employment Law and Litigation, including employment related litigation, commercial litigation, product liability, and the handling of administrative trials, including utilities cases and workers compensation. She advises employers on employment matters, and assists with policy review and development, as well as handling of investigations and complaints, both internal and before civil rights commissions.