At some point over the next several months, most of your employees will receive one of the various COVID-19 vaccines that the Food & Drug Administration has approved for Emergency Use Authorization. As your employees consider whether and when to obtain the vaccine, you, as their employer, have numerous issues to consider regarding the vaccination status of your employees. You should also formalize these decisions in a written Vaccination Policy that you provide to each of your employees, so that everyone is on the same page as to your requirements and expectations regarding the vaccine.
The following are the five considerations that should be front of mind as you prepare your COVID-19 vaccination program and policy.
1. Will you require the vaccine as mandatory, or simply recommend that your employees get vaccinated when eligible to do so? Legally, you can require the vaccine, and proof of vaccination as a condition of employment. In that case, however, you must also allow for reasonable accommodation for employees who cannot get vaccinated because of underlying legally protected disability, and for employees who refuse to get vaccinated because of a sincerely held religious belief, practice or observance. Practically speaking, both because of the ability of certain employees to opt out and other employees who are otherwise anti-vax or pro-privacy to become offended by what they may perceive as an invasion of their medical privacy, a recommendation over a mandate is preferred in most cases.
2. Will you offer the vaccine on-site? The CDC recently released guidance that permits certain employers to establish temporary sites to vaccinate employees. If you opt to vaccinate your employees at an on-site clinic, the confidentiality and medical examination rules of the Americans with Disabilities Act will regulate the information you collect and the questions you can ask.
3. If employees obtain vaccines off-site, will you pay non-exempt employees for their time spent related to getting the vaccination? If you mandate the vaccine, the time employees spend getting vaccinated is almost certainly considered compensable working time (no different, for example, than time spent at mandatory training classes). If, however, vaccinates are recommended and optional, and employees are choosing to get vaccinated, their time spent related to the vaccine is almost certainly not compensable working time. This difference, however, does not mean that you should not pay non-exempt employees for that time. The only way through to the end of the COVID-19 pandemic is through herd immunity, which will require 80 – 85 percent of the population possessing COVID-19 antibodies. We need as many shots in arms as possible, and we do not want employees having to choose between getting paid and getting vaccinated. Moreover, if you have less than 500 employees and voluntarily extend your paid leave program under the Families First Coronavirus Response Act (as permitted under the American Rescue Act), you could qualify for a payroll tax credit for any paid time off provided to employees related to the vaccine.
4. Will you pay employees for time off related to vaccine side effects? Some employees will experience 24 – 48 hours of side effects that mirror having a severe case of COVID-19 itself. High fever, chills, body aches, and headaches are not unusual. Again, we do not want employees choosing to skip the vaccine because they cannot afford to miss a day or two of work. And, similar to number 3 above, you may qualify for a payroll tax credit for paid time off provided to employees related to vaccine side effects.
5. Will you offer any financial incentives or bonuses for employees who obtain the vaccine? The legality of this practice is murky. First, because vaccination rules must have exceptions for employees’ disabilities under the ADA and sincerely held religious beliefs under Title VII, if you are offering employees a financial incentive to get vaccinated, you must be prepared to offer the same exact incentive to those who cannot get vaccinated because of one of these legally protected reasons. Secondly, the Equal Employment Opportunity Commission has not offered any guidance or direction as to whether a bonus payment or other financial incentive changes the voluntary nature of a vaccination. For these reasons, no such program should be implemented without first consulting with legal counsel.
Wickens Herzer Panza’s employment law attorneys are available to help you draft and implement a COVID-19 Vaccination Policy that best answers these questions for your business and its employees. To discuss a policy for your company, contact either:
This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.