In an effort to keep their employees, customers, clients, and others safe, businesses are considering whether to require their employees to be fully vaccinated against COVID-19. Vaccination policies play a crucial role in businesses' evolving workplace safety protocols, but there are numerous factors to consider when determining whether to require or encourage vaccination.
1. Is your business required by federal, state, or local law to mandate employee vaccination?
President Biden recently announced executive orders that include vaccine mandates for federal employees and federal contractors. He has also directed federal OSHA to adopt an Emergency Temporary Standard (ETS), expected to be published in the near future, requiring private businesses with 100 or more employees to mandate COVID-19 vaccinations or adopt a mandatory testing policy.
Many state and local governments have implemented—or are planning to implement—similar vaccine mandates. Employers with questions about applicable vaccine mandates should contact legal counsel.
2. Is a mandatory vaccination policy prohibited in any jurisdiction in which your business operates or employs people?
Some state and local governments have implemented—or are planning to implement—laws that prohibit businesses from requiring their workers to be vaccinated against COVID-19. Employers should contact legal counsel to understand the applicable laws for any jurisdiction where they have employees.
Businesses covered by both the federal COVID-19 vaccine mandate and a state or local law that prohibits such a mandate should consult an attorney for specific guidance due to the complex issue of which law controls.
3. May an employer issue a vaccine mandate for those in certain positions rather than its entire workforce?
Employers who are not required by law to mandate COVID-19 vaccinations for all employees may elect to require vaccines for certain groups of employees. For example, it may be more clearly in the interest of public health to require vaccination for employees whose jobs require them to work on-site near other employees and/or customers, but not necessary for employees who work entirely remotely or who work alone in their own offices with no interaction with other employees or customers.
4. May employers require independent contractors, subcontractors, and any others on-site to be fully vaccinated? How about clients or customers?
Employers should consult with legal counsel to determine whether any applicable federal, state, or local laws either require or prohibit them from applying a vaccine mandate to anyone other than their own employees. In some localities, such as San Francisco and Los Angeles, businesses in some industries are legally obligated to ensure that only fully vaccinated individuals enter the premises.
If no legal obligation or prohibition applies, employers may elect to require that contractors and others who enter its premises are fully vaccinated. Employers should consider whether such a vaccination policy would serve its goals, be administratively feasible, and be in the interest of public health.
If an employer decides to mandate vaccination to individuals other than its own employees, the employer should ensure that it has the administrative resources and processes in place to execute the policy in an efficient, practicable, and lawful manner.
5. Must employers ask individuals to provide proof of vaccination when vaccination is mandated by law? If so, what type of proof is both sufficient and permissible under applicable laws?
Laws that mandate vaccines often specify the level of proof required. Depending on the applicable law, businesses may permit individuals to "self-attest" that they are fully vaccinated, or businesses may need to ask for documentary proof of vaccination.
Some states, such as California, specify what types of documentary proof of vaccination are necessary to comply with state mandatory vaccination law. In most jurisdictions, employers who voluntarily implement vaccine mandates may elect what type of proof is sufficient under their policies.
6. Must the employer issue medical privacy authorization forms to individuals before collecting any information about individuals' vaccination status?
Some states, such as California and Texas, have laws that require businesses to issue specific authorization forms before collecting certain categories of information from individuals. In those states, businesses should ensure that covered individuals review and sign these forms before they ask individuals to provide medical information such as COVID-19 vaccination status.
In other locations, employers may ask to see vaccine documentation without specific privacy disclosures. If the employer obtains a copy of vaccine records, it should maintain those records as confidential medical information.
7. If an employer is simply encouraging but not requiring vaccination, is it lawful for the employer to provide incentives to encourage employees to get vaccinated?
Some businesses provide incentives, such as one-time bonuses or ongoing discounts on their health insurance payments, to employees who get fully vaccinated against COVID-19. These are generally legal.
However, businesses are encouraged to consult with legal counsel to verify that proposed incentives are acceptable. Some laws may limit the permissible types of incentives (e.g., HIPAA Nondiscrimination and the Wellness Program exception; Americans with Disabilities Act; Affordable Care Act; and Internal Revenue Code section 105(h)'s nondiscrimination provision).
Businesses should contact an experienced employment law attorney for specific guidance.
8. Does a business that requires vaccination, either voluntarily or as required by law, have the administrative infrastructure and resources to engage in interactive and reasonable accommodation processes with individual employees who request a religious or medical accommodation?
Businesses that require COVID-19 vaccination for employees must be prepared to consider accommodation requests from employees on the grounds of a sincerely held religious belief or a qualifying medical condition or disability.
Depending on the size of the employee population and the capabilities of the Human Resources team, this may be a challenging and time-consuming undertaking. Employers should prepare in advance for how these exemption requests will be processed and considered.
9. If a business requires vaccination and an employee requests accommodation for religious or disability reasons, what is the employer's obligation?
When an employee cannot be vaccinated for religious or disability reasons, the employer must engage in the interactive process with the employee and determine how—and if—the employee can be reasonably accommodated. The standards for accommodation for religious and disability accommodations often differ, and employers are obligated to consider each accommodation situation on a case-by-case basis.
For example, depending on the circumstances, such as the job duties and cost of the available accommodations, it is possible that there are no reasonable accommodations for in-person work. In such circumstances, the employer must assess and discuss available options with the employee, such as fully remote work or a leave of absence.
Overall, it is important for employers to apply accommodation standards consistently. Businesses should contact an experienced employment law attorney for specific guidance.
10. What if an employee who is required by law or the employer's policy to be vaccinated refuses to get vaccinated and does not qualify for a religious or medical accommodation?
If an employee does not qualify for accommodation for religious or disability reasons, the employer is not legally obligated to accommodate the employee and could terminate the employee. Even so, some employers choose to accommodate such employees anyway with remote work, transfer to an alternative position, or a leave of absence.
Before implementing a mandatory vaccination policy, employers should consider how they will handle such situations when they arise to ensure consistent application of policies and protocols.
Employers should carefully consider these and other questions when deciding how to address the issue of COVID-19 vaccination in their workplaces. The issues identified in this list are not exhaustive.
For example, employers with unionized workforces need to consider potential bargaining obligations. Because federal, state, and local laws are rapidly changing, employers are wise to work closely with legal counsel and remain prepared to update employment policies as needed.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.