Let’s discuss COVID vaccination and what employers need to know about mandating the vaccine, proof of vaccination at work, wage and hour, and possible exemptions.
I am scheduled to get my second dose of the COVID vaccination this weekend (this is me in the picture after getting my first shot 3 weeks ago!). This is great news for me and my family. We will be able to resume a more social life without the fear of catching or passing a deadly virus.
Since December, the three COVID vaccines which are administered (Pfizer, Moderna, Johnson & Johnson) are proving to be very effective at protecting people from getting sick. They also have high efficacy in preventing the transmission of the disease. The FDA continues to monitor closely all reports of side effects and adverse effects as we have seen this week with the recommended pause on the J&J vaccine. The three vaccines are currently used under emergency use authorization.
As the roll-out continues, more vaccines are available to more people. In my home state of Virginia, it is now available to all people age 16 and up. The question of vaccines in the workforce is gaining more acuity. Let’s consider a few commonly asked questions regarding vaccination and the workplace.
Can employers mandate that employees get the COVID vaccination?
The pandemic has changed the rules of the game on the EEOC front. What could have been considered as discriminatory practices changed because of the “direct threat” caused by the COVID pandemic. For the past year, the EEOC has allowed employers to implement new measures (e.g. temperature checks, face mask requirements) to protect the workforce and the population at large.
When it comes to the COVID vaccination, EEOC guidelines issued last December indicate that employers can mandate vaccination for their employees. Employers do not have to prove that COVID vaccination is directly related to a job requirement. However, the ADA and religious exemptions can come into play for those claiming an exemption from mandatory vaccination.
Can a client request proof of vaccination when your employees visit their site?
Although business meetings are still happening virtually, many businesses (like home care) have sent their employees for in-person services through the pandemic. A new trend is for clients to request a caregiver who has been vaccinated. Given the history of this pandemic, it makes sense for clients to want to be protected from the transition of the COVID virus.
Several legal experts believe that an employer asking for the vaccination status of an employee is not a breach of the ADA requirements. However, there is a question around confidentiality of the employee’s personal health information especially if clients ask follow-up questions around why a caregiver might not be vaccinated. The question will gain momentum as vaccines become widely available.
Is time spent getting a COVID vaccine considered work time? Should it be paid?
Again, legal experts believe that a COVID vaccine that is recommended by the employer but not mandated is not considered a work requirement. Thus, time spent getting the vaccine probably doesn’t need to be compensated.
However, if the objective is to vaccinate as many as possible in your workforce, it would be wise to remove any and all disincentives to vaccination. When vaccination occurs at the worksite during work hours, it’s probably best to consider the time spent getting vaccinated as work time and is compensable.
In addition, if getting a COVID vaccination is “integral and indispensable to the employee’s principal activity” (e.g. healthcare), mandatory COVID vaccination happening outside of regular work hours might have to be compensated too.
Vaccine Exemption – Can employees be exempt from mandatory COVID vaccination?
The short answer is yes and there are two main scenarios: medical exemption and religious exemption.
Vaccine Exemption – Medical exemption from mandatory COVID vaccination
Although a COVID vaccination mandate is permissible, employers cannot discriminate against employees who refuse a vaccine because of a disability. At this point, we need to engage in an interactive process to understand if there is a possible reasonable accommodation.
Justification for an adverse employment action (e.g. discipline, termination) against such an employee would only be legal if the employer can show that the unvaccinated employee would pose a direct threat.
Vaccine Exemption – Religious exemption from mandatory COVID vaccination
The other case most likely to be a basis for exemption from mandatory vaccination is based on religious belief. This has happened to one of my clients. The religious belief exemption can come from practices and observances that the employer may be unfamiliar with. It is always safest to assume that the employee’s request is based on a sincerely held religious belief and as such is protected. Again, consider finding a reasonable accommodation through an interactive process with the employee. A reasonable accommodation might be to relocate the employee to a position where vaccination is not required, for example working remotely.
The bottom line: As we have seen since March 2020, flexibility and adaptability remain the best practices for employers wanting to get their workforce COVID vaccinated.
For employees who are on the fence about receiving the shot, it might be a matter of time before they feel comfortable getting theirs. Helping them “get over the fence” with personal communication is probably your best tool to get to herd immunity at work.