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At long last, all adult Americans have access to the COVID vaccine. This raises new questions regarding employers’ ability to mandate vaccinations, what type of liability they may face with respect to unvaccinated employees contracting or spreading COVID, and what rights employees have to access vaccinations. This article examines these issues and concludes that while mandating vaccinations is likely legally defensible, other approaches may limit legal liability while also avoiding major headaches.
Can employers mandate vaccination?
The Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have released guidance stating that, subject to certain religious and medical exemptions, employers may mandate that employees receive a vaccination approved by the FDA against COVID. This means that both of the state agencies most responsible for enforcing civil rights in California workplaces generally support vaccine mandates so long as employees’ right to medical and religious accommodations are met and the FDA approves the vaccine. Employers should note, though, as discussed below, that questions remain as to whether the three vaccines approved by the FDA for emergency use qualify as approved vaccines.
California law requires that all employers reasonably accommodate employees’ known disabilities. If an employer adopts a vaccination mandate for its workforce, the employer must engage in the interactive process with, and reasonably accommodate, any employee with a disability-related reason for not being vaccinated. The employer must also not retaliate against the employee for requesting an accommodation. In some circumstances the employer may be able to show that the accommodating imposes an undue hardship and that the employee is unable to perform his or her essential duties even with a reasonable accommodation or that the health of the employee or others will be endangered. This is a fact-specific determination and should only be undertaken with the help of competent counsel.
California law also requires that employers accommodate employees’ known sincerely-held religious beliefs and practices. If an employer adopts a vaccination mandate at the workplace and the employee objects to vaccination on the basis of that sincerely-held religious belief or practice, the employer must reasonably accommodate the employee and not retaliate against the employee for making the request. As with a medical exemption, the employer should engage in an interactive process with the employee and adopt a reasonable accommodation, if possible.
If an employee requests a reasonable accommodation, the employer should work with competent counsel to develop the accommodation. As a general rule, an accommodation should protect the employee’s health or eliminate the conflict with the religious belief or practice, as appropriate. It may include, but not be limited to, job restructuring, job reassignment, or modification of work practices. However, unless requested by the employee, segregating the employee from other employees or the public will not be deemed a reasonably accommodation.
If an employee objects to getting a vaccination in keeping with the mandate but does not have a disability-related or sincerely-held religious belief or practice reason, the employer is not required to make any accommodation. Employers may enforce reasonable disciplinary measures if an employee violates the vaccination mandate, but should consult with counsel prior to doing so. Further, this situation should be anticipated prior to announcing any vaccination mandate. It is essential that the employer consistently enforce its rules and not engage in any employment action that violates the civil rights of the employee.
However, any employer mandating vaccination will need to not only set up a system that accommodates appropriate exemptions, but also manages employee privacy and employees who refuse to be vaccinated but do not qualify for a legal exemption.
In addition, employers should keep in mind that, though rare, negative medical reactions, such as allergic reactions and blood clots, can occur as a result of vaccination. Employees may bring causes of action related to such injuries if their employer mandates vaccination, though there are a number of potential legal defenses to such claims. In some cases, these injuries may be covered by worker’s compensation. In addition, such claims typically require proof of negligence, which will be difficult to prove if the employer does not manage the vaccination process. If the employer does manage the process, it may be protected under the Public Readiness and Emergency Preparedness Act as a “program manager.” In all cases, though, employers should work with competent counsel to design a program that limits their potential liability.
Finally, all employers should note that the FDA authorized three vaccines, popularly known as the Moderna, Phizer, and Johnson & Johnson vaccines, for “emergency” use. Employees in a broad array of sectors, in California and elsewhere, have filed lawsuits, arguing that employers cannot mandate receipt of a vaccine that is still under emergency use authorization. Therefore, employees may object to these vaccines being mandated under even the best designed mandate program. Until these vaccinations receive final approval from the FDA, there will be some additional potential liability that is simply beyond their control.
Vaccination records and employee privacy
Generally, employers may ask if an employee has received a COVID vaccine so long as the inquiry is “job-related and consistent with business necessity.” Employers should always proceed with caution when seeking medical information about employees, as various laws protect employee privacy with respect to medical information. For example, employers should be careful as to what questions they ask, because under the Americans with Disabilities Act (ADA), certain questions could elicit information about a disability. However, there are a multitude of reasons that someone received or did not receive the vaccine. With that in mind, a question designed to solicit a simple “yes” or “no” answer to whether an employee was vaccinated is unlikely to violate the ADA or other medical or privacy laws. Consult with competent counsel prior to asking for any additional information.
It is reasonable to request proof of the vaccination via the vaccine card but employers should ask employees to omit any unnecessary medical information from the documentation (if applicable). Providing a photo or other copy of the vaccination card is sufficient. Any retained documentation must be maintained as a confidential medical record. Employers subject to the CCPA should recognize collecting information from employees about their vaccination status triggers the “notice at collection” requirement.
Please note, however, that authorities are not yet allowing vaccinated and un-vaccinated employees to be treated differently at work regarding safety protocols such as masking and social distancing due to the possibility of variants and wanting to observe the efficacy of the vaccines in the interim. Accordingly, there may not be significant value in merely knowing which employees are vaccinated or not, if the employer is not yet requiring vaccinations. Employers should consult with counsel to create a plan if they will be requiring vaccinations, including how to handle follow up questions in the situation where an employee is not vaccinated (these must be “job-related and consistent with business necessity,” which is essentially the same analysis necessary to mandate vaccines). However, if an employee states they are not vaccinated, the employer should not ask further follow up questions or take any employment action without knowing more.
Incentives to vaccinate and limiting liability
Keeping in mind that vaccination mandates must be carefully designed and present both employment and legal challenges, we recommend that employers explore other options to limit legal liability related to the spread of COVID at workplaces. First, Scali Rasmussen continues to recommend that employers implement social distancing measures, including remote work options, as are appropriate for their industry. Employees should still wear masks, hand washing and/or the use of hand sanitizer should occur often, and workstations should still be cleaned on a regular basis. These measures should be maintained for the foreseeable future as a means to limit legal liability.
In addition, it is legal to offer incentives to employees to obtain COVID vaccinations, and employers should explore this option. Notably, any incentives must be made available to all employees who have not already been vaccinated. Any employer pursuing this approach should work with counsel to ensure that the program safeguards employee information and that the employee compensation is treated correctly under tax law. The compensation may also be treated like a wellness program under HIPAA and should be designed with these rules in mind.
Paid time-off for vaccinations
Finally, whether an employer mandates vaccinations, offers an incentive program, or takes no particular steps at all, it may be able to take advantage of some tax incentives to support vaccination. Congress passed the American Rescue Plan to extend the paid leave tax credits available to employers with less than 500 employees through September 30, 2021. While employers are no longer required by federal law to provide the leave, if this leave is voluntarily provided (or, provided pursuant to a state or local mandate), employers can continue to obtain tax credits for the maximum amount allowed under federal law for leave taken through September 30, 2021. Please note that the amount paid to the employee may not exactly match the tax credit available if the state or local order requires paying out such leave at a different amount than the federal maximum tax credit.
Additionally, the plan expanded the circumstances under which the paid leave tax credits would apply to include vaccination-related time off in an effort to vaccinate as many Americans as possible.
The following are new qualifying reasons for the paid leave tax credits:
- Time off for obtaining a COVID vaccine;
- Time off to recover from any injury, disability, illness or condition related to such vaccination (i.e., experiencing side effects); and
- Time off to seek or await results of a diagnostic test or medical diagnosis for COVID (or if the employer requests such a test or diagnosis).
The law also re-set the 10-day limit for the tax credit under the FFCRA starting April 1, 2021. So, if an employee previously exhausted COVID-related leave and tax credits in 2020 or even early 2021, the availability of tax credits for such leave replenished on April 1. Again, federal law does not require that employers provide leave after April 1, 2021, but if such leave is voluntarily provided by employers, or provided under some state, local or other requirement, employers can seek tax credits even for an employee who previously used all available FFCRA leave.