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How to prepare for a vaccine rollout

Employers can do a lot to encourage employees to get vaccinated and many are assessing their options. In a recent webinar, Conn Maciel Carey LLP, a labor and employment and workplace safety law firm, noted four approaches:

  1. Encourage (educate, recommend, facilitate)
  2. Incentivize (provide a benefit to employees)
  3. Administer (on-site vaccination program)
  4. Mandate (vaccine is a condition of employment)

The first is something every employer can do. Trustworthy educational materials are available from government, medical, and industry organizations. The CDC has created customizable COVID-19 Vaccine Content for Essential Workers and many of the ideas are adaptable to other employers. In addition, there is a vaccine resource page and a FAQ about vaccines.

Take the time to understand your employees' concerns, reasons for resistance, and assess the best way to address them. There is an overwhelming amount of conflicting information about the vaccine that can leave employees confused and fearful. Messages from some media and social media channels promote anti-vaccine theories, scams offer vaccine appointments to steal personal information, fake religious exemption cards are marketed, and fraudulent vaccination cards are sold.

Have trusted leaders in the community speak to your workers and partner with civic, religious, and advocacy organizations to combat vaccination hesitancy. Use many different channels to reach employees - intranet, social media, email, newsletters, posters, flyers, and so on - in a language and tone that will resonate with employees. Identify respected workplace leaders who can help with the messaging.

Do everything possible to make it easy for employees to get the vaccine by working with local health administrations and medical institutions to identify sites where employees can receive the vaccine, consider PTO for vaccine appointments, arrange transportation to off-site clinics, and ensure no out-of-pocket costs. The Executive Order issued by President Biden emphasized that employers should make vaccines available "at no cost." CDC officials also advise planning for some time off (usually one or two days) for workers who experience post-vaccine symptoms and allow paid sick time, particularly after the second shot.

For employers, encouraging but not mandating employee COVID-19 vaccination avoids legal risks.

Incentivizing is more complex, and a coalition of 42 business groups and organizations sent a letter on February 1 asking the EEOC to provide guidance on whether incentives of more than minimal value, such as cash, gift cards, paid time off, are legal. The EEOC had taken the position that employer-paid high value incentives for participating in wellness activities would violate the ADA or the Genetic Information Nondiscrimination Act (GINA) by coercing participation in wellness activities. It's unclear whether those activities include receiving vaccinations. However, the Biden administration withdrew the proposed regulations from publication in the Federal Register under a regulatory freeze and is reviewing the rule.

According to an article in The Washington Post, employers such as grocers are proceeding to offer incentives. Given that a common employee objection is that they can't afford to take time off or afford childcare, paying for the time to get a vaccination is a popular incentive. Dollar General, Trader Joe's, Aldi, and Lidl, as well as Instacart, have announced plans to promote the vaccine among employees, including flexible work schedules, paid time off to visit a vaccination site, and bonuses of up to $200. Yogurt-maker Chobani is offering its 2,200 workers up to six hours of paid time off to get inoculated (three hours for each dose received).

However, the article notes most employers are taking a cautious approach, remain undecided, and are puzzling through their plans for vaccines and their workforces. They are concerned about liability and wage and hour risks. Some lawyers recommend that employers do not mandate vaccines or add them to an incentive program at this time, noting regulatory uncertainty and concerns that vaccines are approved for use on an emergency basis. Others suggest that incentives may be allowed as long as the employer does not collect personal health information. They note incentivized flu shots requiring allergy inquiries have been the standard of care for years.

Administering vaccines onsite is most realistic for larger employers but is fraught with a wide range of legal and practical considerations, even if the program is voluntary. In states where it is available, some businesses, particularly those that employ critical infrastructure workers, are considering entering into agreements with state and local health departments to be closed point-of-dispensing sites to administer state-provided vaccines, which means only employees and sometimes their family members are eligible. Other employers are planning to host voluntary or mandatory vaccine programs in the workplace once the vaccine becomes available to them through vendors. Moreover, the COVID-19 landscape changes quickly so it is critical to stay on top of state requirements. In Massachusetts, the Governor encouraged employers to prepare for vaccinating their employees when they became eligible but recently suspended the program, citing supply constraints.

Employers must have trained medical personnel available who can lawfully administer vaccines, decide whether employees will be paid for time spent getting the vaccine, protect the privacy of all workers, administer the vaccine in a non-discriminatory manner, have a robust verification system, adhere to state reporting requirements, and possibly face workers' comp claims if any workers have an adverse reaction. Some plan to offer the vaccines through third parties, such as a pharmacy or health care provider that is not acting as an agent of the employer, to reduce the legal exposures. But many are opting to encourage workers to get vaccinated, citing concerns about potential liabilities, the costs and administrative headaches of operating an onsite vaccine clinic, and the possibilities of workplace tensions and negative impact on morale.

While The Equal Employment Opportunity Commission (EEOC)'s guidance, Section K of "What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws" essentially gave a green light for companies to require employees to get vaccinated against COVID-19, there are exceptions related to disabilities and religious objections that expose employers to litigation if not handled properly.

According to an online survey by Littler Mendelson P.C., an employment and labor law firm, only a small percentage of employers require (1%) or plan (6%) to require employees be vaccinated. Three percent said they plan to mandate vaccination only for certain workers, such as those in customer-facing roles and some plan to ban unvaccinated employees from certain activities such as travel or customer interaction. Those numbers may change as 43% were undecided.

In addition to the legal considerations cited above, the number of employees who will refuse the vaccine, union collective bargaining agreements, workers' protected concerted activity, such as an effort to oppose mandatory vaccines, state and local laws, OSHA recordability of adverse reactions, workers' comp claims, the company's culture, and employee morale all must be weighed. Even with excellent messaging and buy-in, it is likely that some portion of the workforce will refuse to get the vaccine, and even may choose to resign rather than be vaccinated.

When employers chose to mandate but not offer the vaccine onsite, they have the added burden of a robust verification and tracking system, including how to identify and handle fraudulent evidence of vaccination. Legally employers can ask employees if they've received a vaccine and can ask for proof. However, it's best to instruct employees only to provide information regarding the vaccine and not any medical information to avoid implicating the ADA. The EEOC guidelines note, "subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be job-related and consistent with business necessity." Further, if vaccine supply constraints continue, employers must consider how to account for employees who are unable to get vaccinated through no fault of their own.

There are legitimate business reasons to keep track of the number of employees who are vaccinated as part of the employer's overall safety program. This data can help guide the employer's decisions about reopening or expanding the number of individuals at work. Online tools are becoming increasingly available to help employers track immunization, but it remains the employer's duty to be sure that the software is secure, adheres to privacy laws, and that the information will remain accessible to the business.

Whether a business ultimately decides to require vaccines or to leave it up to employee choice, having a clear written policy and being prepared to manage the process is essential to success. If the policy is voluntary, it should include a clear statement of purpose (i.e. duty to provide and maintain a workplace that is free of known hazards,etc.), encourage employees to receive the vaccine, statement of compliance with all applicable laws, scope (all employees), how the company will assist employees in receiving vaccines either with onsite vaccines or a list of locations, whether employees will be paid for time taken to receive vaccinations, and any requirements for providing proof of vaccination (such as customer-facing staff).

If you mandate or incentivize the vaccine, the following should also be included:

Managers and Human Resources professionals should receive training to ensure the messaging is supported and understood, the program is implemented consistently, and legally compliant.

The decision to mandate will be largely driven by the nature of the business and must be narrowly tailored to address risks of COVID-19 in the workplace. A mandatory vaccination policy may work well for healthcare facilities or close-quarters or contact-heavy workplaces, but not for low contact offices. Employers that are considering on-site vaccine clinics, incentivizing, and/or mandating the vaccine are well advised to seek legal counsel.