Legal Alert: Requiring, Incentivizing or Asking About Employees' COVID-19 Vaccine Status

As the United States continues to fight against the spread of COVID-19, vaccinations of the most high-risk Americans have begun. To date, there are three vaccines, one from Moderna, one from Pfizer, and one from Johnson & Johnson, that are available on a limited basis, with distribution being handled at the state and local level. As of the summer of 2021, all Americans age 12 and over are eligible to receive the vaccine in their locality. As businesses are eager to return to the office and bring customers back on-site as applicable, many employers are wondering if they can require their employees to receive the COVID-19 vaccine as a condition of employment.

The short answer: We are waiting for more guidance from the government on this issue. Currently, the vaccines are only available under the FDA’s Emergency Use Authorization (EUA). This is different from FDA approval. Under an EUA, the FDA has not yet compiled all the evidence and clinical data that it normally would compile before approving a vaccine for public distribution and use. This means that the FDA has an obligation, among other things, to inform recipients of the vaccine that they have the option to accept or refuse the vaccine. Therefore, there are a series of considerations an employer should work through prior to rolling out a vaccine requirement, or incentive program.  

The longer answer: there are many considerations when determining if an employer can require, strongly encourage or incentivize employees to receive the COVID-19 vaccine. The decision presents enormous employee relations issues as many employees may be skeptical about the vaccine and mandating the vaccine may create pushback from employees and affect morale. Additionally, the nature of the business and job-relatedness of vaccination are important factors.

Regulatory guidance can assist employers in their decision-making process. Currently, OSHA has not yet issued any guidance on whether employers may require employees to be vaccinated. The Equal Employment Opportunity Commission (EEOC) has stated that if employers require employees to get the COVID-19 vaccine, exceptions must be made for employees who are not able to be vaccinated due to a disability or a sincerely held religious belief. Obviously, vaccine requirements must be job-related and consistent with business necessity. Moreover, state and local laws may affect an employer’s right to require employee vaccination. The EEOC has expressly noted that its guidance does not discuss or contemplate the current EUA status of vaccines, and the EEOC has no jurisdiction over the FDA approach to vaccines.

At the forefront, existing federal regulations must be considered, particularly the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The EEOC has issued guidance on the interplay between vaccinating employees and these regulations, answering key questions such as whether administering the vaccine is a “medical examination” for purposes of the ADA, whether asking an employee for proof of a vaccine is a disability-related inquiry and how employers should respond to employees who are unable to receive a vaccine because of a disability, or a sincerely held religious practice. Reasonable accommodations must be considered and evaluated, such as face masks, social distancing, modified shifts, additional COVID-19 testing, telework or even reassignment. If employers determine they can and will require the vaccine, medical and religious objections, as well as personal objections, need to be considered in any policies and processes.

Incentivizing employees to make health decisions, such as receiving influenza vaccinations or eating healthy foods, has long been allowed by federal regulators, within certain parameters. These wellness programs can have a positive impact on employee’s lives but require careful setup and consideration to ensure they do not veer into discriminatory territory. Vaccinated employees might still need reasonable accommodations due to disability if their disability puts them a heighted risk for severe illness from COVID-19 – reasonable accommodation requests should be processed appropriately and in accordance with the ADA. Employers who choose to require vaccination and provide COVID-19 vaccines to their employees on-site or through a third-party agent should consider the ADA implications of the pre-vaccine screening questions- the employer would have to have a reasonable belief that an employee who does not answer the questions and cannot be vaccinated will pose a direct threat to their own health or the health and safety of others in the workplace. Employers should be prepared that some employees might challenge the screening questions and be able to justify them under the ADA. If an employer chooses to simply offer a vaccine clinic to any employee who would like to be vaccinated would not trigger reasonable accommodation needs.

Employers are not making a disability-related inquiry about an employee if they ask for documentation that an employee received the COVID-19 vaccine from a third party (such as their physician, a pharmacy or a local vaccine clinic). This request is also not prohibited by HIPAA, because HIPAA only protects health care information in the hands of covered entities, which are health plans (like health insurance companies, group-sponsored health plans, etc.), health care providers and health care clearinghouses. An employer asking an employee directly for documentation of the vaccine is not protected by or prohibited under HIPAA. The information is however personal and confidential, and employers should protect the information the same they would any other personal and confidential information about their employees.

Employers must also consider the potential impact of either not requiring (or encouraging) vaccines and the potential of an outbreak in the workplace, or for requiring vaccinations, which could result in claims from employees against their employer if they believe they suffer harm due to a vaccination.

State laws are also important to consider. Some states have issued guidance through their departments of labor, or bureaus of labor and industry, etc. Employers who operate in multiple states may have to review state laws and regulations in a variety of jurisdictions. Some states may provide categorical exemptions for certain types of employees.

Finally, some employee populations, such as contract employees or employees subject to a collective bargaining agreement, may also require additional analysis by employment counsel to determine if mandatory vaccines are possible.

In summary, although employers are likely able to require the vaccine in some capacity, a variety of regulations and laws, as well as practical considerations, must be reviewed and considered. Employers should be prepared to handle employees’ objections to the vaccine and have a standard process for determining if reasonable accommodations exist, that are compliant with the ADA, and Title VII. Employers should always consider local vaccine availability when developing any type of vaccine requirement or incentive program.

The information contained herein should be understood to be general insurance brokerage information only and does not constitute advice for any particular situation or fact pattern and cannot be relied upon as such. Statements concerning financial, regulatory or legal matters are based on general observations as an insurance broker and may not be relied upon as financial, regulatory or legal advice. This document is owned by Alera Group, Inc., and its contents may not be reproduced, in whole or in part, without the written permission of Alera Group, Inc.

This article was last reviewed and up to date as of 06/10/21.