FAQ – Employer Vaccination Policies and Practices

Part I on 03/18/2021

My company is reluctant to mandate vaccination while the available COVID-19 vaccines remain under emergency use authorization (EUA). When do you anticipate the FDA will provide full approval of the vaccines?

In order for a vaccine to go from EUA to full approval from the FDA, vaccine manufacturers must keep collecting data and continuing trials until they have enough information to submit a Biologics License Application (BLA). There is no specific timeframe for the submission of a BLA to the FDA and therefore it is difficult to predict when the COVID-19 vaccines will be fully approved. However, manufacturers of currently available EUA COVID-19 vaccines—Pfizer, Moderna, and Johnson & Johnson—have all shared plans to submit their BLAs in the first half of 2021 with the goal of receiving full approval from the FDA by the end of the year.

My company is considering a hybrid approach to vaccination (e.g., one that mandates vaccination for new employees but encourages it for existing employees; or one that mandates vaccination, but only for certain departments). Is such an approach permissible?

Yes. Companies with workforces that comprise various levels of COVID-19 exposure may legally implement a hybrid COVID-19 vaccination policy. In other words, certain sectors of the business may be subject to one type of vaccination policy while other sectors may be subject to a different policy. Such an approach is permissible as long as the employer has a legitimate, nondiscriminatory basis for delegating which sectors of their workforce will be subject to which type of vaccination policy. The same holds true for imposing a vaccination requirement as a condition of commencing employment, but not making it mandatory for current employees. As with most policies, the key is to treat all similarly situated employees the same.

My company would like to strongly encourage vaccination by offering incentives. Are there legal limits on the incentives we may offer?

While the law does not prohibit employers from offering incentives to their employees to get vaccinated, it also does not offer clear guidance as to how far a company can legally go to incentivize COVID-19 vaccinations. In the absence of such guidance, employers should strike a balance between offering an incentive that is enticing enough to meaningfully encourage employees to get vaccinated, yet not so irresistible as to be viewed as “coercive” and potentially implicate health information privacy laws by “requiring” disclosure. Generally speaking, employers should consider factors such as the type of incentive offered, the perceived value of the incentive, and how the incentive is ultimately communicated to the employees.

Employers must also keep in mind that how they structure and implement their incentivized vaccination program could implicate various obligations under laws such as the Americans with Disabilities Act (ADA), Genetic Information Non-Disclosure Act (GINA), Employee Retirement Income Security Act (ERISA), Fair Labor Standards Act (FLSA), Health Insurance Portability and Accountability Act (HIPAA), as well as other state and local laws. Given the complexity and rapidly evolving legal landscape, employers considering implementing an incentive-based vaccination program are encouraged to seek guidance from local Quarles & Brady counsel to design an incentive that balances the legal risk with the desire to maximize vaccination rates.

If my company mandates or strongly encourages vaccination, can it scale back the PPE and other COVID-19-related modifications put in place during the pandemic?

Recent guidance from the Centers for Disease Control and Prevention (CDC) for fully vaccinated people has shed some light on how employers may be able to modify their work environments as more of their employees receive the vaccine. The CDC has stated that fully vaccinated individuals may gather indoors with other fully vaccinated people without wearing a mask but should still avoid medium or large-sized gatherings. Under such guidance, employers may be able to lift their mask requirement for small-scale work environments where all employees present are fully vaccinated. According to the CDC, given the lack of data surrounding the vaccine’s effectiveness at stopping the transmission of COVID-19, masks and other COVID-19 precautions should still be used around unvaccinated employees whether in a small- or large-scale work environment.

The CDC has also stated that fully vaccinated individuals who have been exposed to someone with COVID-19 are not required to stay away from others unless they are exhibiting symptoms. Therefore, COVID-19 leave policies that address an employee’s need to quarantine after exposure to COVID-19 may be modified for vaccinated employees. Notably, CDC guidance for employers with travel-based workforces recommends that domestic and international travel still be delayed.

Can and should my company require employees to provide documentation verifying vaccination status?

Companies that implement voluntary, employer-encouraged, or mandatory vaccination programs can require employees to provide documentation verifying vaccination status. Employers should request such proof of vaccination, including to substantiate entitlement to any vaccination incentives, and to address PPE, other workplace health and safety measures, and future COVID-19 absences. Any vaccination documentation should simply verify dates of vaccination, and whether all necessary doses have been administered. Such documentation may include a copy of an employee’s paper CDC vaccination card or access to an employee’s digital vaccine card (if and when available). Employers may retain such vaccination documentation, but must keep it confidential and treat it as medical documentation—stored separately from an employee's personnel file. In the alternative, employers may choose simply to maintain a confidential and secure log tracking if and when employees are fully vaccinated.

What do my company's HR employees and managers need to know about employee religious and medical exemption requests?

Under Title VII of the Civil Rights Act of 1964 (Title VII) and the ADA, employers must provide reasonable accommodations to employees whose “sincerely held religious beliefs” and/or medical conditions prevent them from receiving the vaccine—unless the accommodation would pose an undue hardship.

With respect to a religious vaccination exemption request, an employer must provide an accommodation to an unvaccinated employee if doing so would not cause more thana minimal cost or burden on operations—an“undue hardship” under Title VII. Because this is a much lower burden than imposed on employers under the ADA, as covered below, requests for religious vaccination exemption are more likely to be denied. HR personnel should normally assume that an employee’s religious exemption request is based on a “sincerely held religious belief,” which refers to a firmly held moral and ethical belief. However, if there is an objective basis for questioning either the religious nature or the sincerity of an employee’s particular belief, HR can request additional supporting information from the employee. Because this is a highly sensitive area, and it may be unnecessary to address the issue, companies should consult counsel before questioning the sincerity of an employee’s religious belief.

With respect to medical vaccination exemption requests, an employer must provide an accommodation to an unvaccinated employee with a properly documented medical condition for which the COVID-19 vaccine is contraindicated, so long as doing so would not would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others (e.g., an unvaccinated individual exposing others in the workplace)—an “undue hardship” under the ADA. HR personnel should assess the following four factors to determine whether an unvaccinated employee would present such a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

Importantly, companies cannot automatically terminate an unvaccinated employee because the employee’s medical or religious vaccination exemption request would present a direct threat or burden to costs and operations. Instead, employers must provide reasonable accommodations, without incurring undue hardship, to minimize the risk of having an unvaccinated worker, which may include continued mask wearing, social distancing, and remote working. Including because these determinations are fact-specific and must be implemented in a careful manner, HR should consult counsel before determining which reasonable accommodations might be appropriate for unvaccinated employees.

My company is reopening its physical locations. How do I handle a teleworking employee who refuses vaccination but is reluctant to return to work for fear of contracting COVID-19?

First, assess whether there is a potential duty to consider accommodating the teleworking employee’s refusal to vaccinate. If the employee is refusing vaccination due to a sincerely held religious belief, Title VII requires the employer to reasonably accommodate this employee, so long as doing so would not impose a cost or burden to operations. Similarly, if the employee is refusing vaccination due to a qualifying medical condition, the ADA requires the employer to reasonably accommodate this employee, to the extent that doing so would not pose a direct threat or undue hardship. (See response to question above).

If the employee does not have a religious belief or qualifying medical condition which prevents the employee from receiving vaccination, the employer has no legal obligation to accommodate the employee. There is no general duty to accommodate an overall fear of returning to work. Accordingly, if an employee refuses vaccination for a non-medical, non-religious reason, yet refuses to return to the workplace, an employer does not have to facilitate extended telework arrangements. When faced with this question, employers should evaluate the circumstances, and determine whether an extended teleworking relationship would be beneficial—applying the same standard to other similarly-situated employees. There are pros and cons to extending telework; yet, any such arrangement should not be indefinite.

Quarles & Brady has recommended that employers implement a vaccination policy regardless of the type of vaccination program they implement. What topics should the policy cover?

Every workplace vaccination policy should identify, at minimum, the following: (1) the type of vaccination program implemented, whether mandatory, encouraged, or voluntary; (2) to whom the vaccination program applies (e.g., all employees or select positions, visitors, etc.); (3) required documentation verifying vaccination status; (4) any reimbursement, time off, or incentives for vaccination; (5) PPE and workplace health and safety measures; (6) protocols for COVID-19 exposure post-vaccination; and (7) employee accommodations. In addition, vaccination policies may include information about the vaccine itself and/or resources for obtaining vaccination. For assistance in drafting your company’s COVID-19 vaccination policy, contact your local Quarles & Brady attorney.

Part II on 05/19/21

Since the CDC has updated its recommendations for fully vaccinated individuals, what should employers do now?

Updated guidance from the CDC provides that—subject to applicable state and local law or business and workplace guidelines—fully vaccinated individuals no longer need to wear a mask or physically distance. In addition, the CDC stated that fully vaccinated individuals no longer need to get tested for COVID-19 following a known exposure, unless they are experiencing COVID-19 symptoms or are residents or employees of a correctional or detention facility or homeless shelter. The Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have both taken notice of this new CDC guidance—the EEOC has announced it is considering the guidance in conjunction with the advice it already issued with respect to COVID-19 policies and anti-discrimination laws, and OSHA has instructed employers to follow the new CDC recommendations for fully vaccinated workers, outside of healthcare and a few other environments, pending updates to its workplace guidance.

Considering the foregoing, and consistent with our discussion during the recent webinar, the answer to many employers’ question “Can I now relax masking and distancing requirements for vaccinated employees?” is “YES”. So long as state or local laws do not require otherwise, employers who wish to relax such requirements should now be planning to ratchet back workplace mask and social distancing mandates. Specifically, employers should complete their plans for implementing necessary procedures and communicating with their employees about their new requirements relating to masking and social distancing. While they do so, employers should make clear to employees that they’re evaluating current administrative guidance, anticipate announcing relaxed rules soon, and encourage employees to become fully vaccinated so that they can take advantage of modified masking and social distancing rules in the workplace.

Employers should adopt procedures by which employees can establish their vaccination status to human resources personnel, and human resources personnel should develop procedures to provide truncated vaccination information to supervisors. For example, human resources might regularly prepare and update an area-by-area list of workers that do not have to wear a mask. Such a list will arm supervisors with the ability to enforce the tailored mask policy, and should eliminate any reason for supervisors to further question employees about why they are unvaccinated (which may constitute a medical examination prohibited under the Americans with Disabilities Act (ADA)). Unlike the ADA and religious accommodation concerns with a mandatory vaccination policy, eligibility for the CDC’s relaxed rules depends only on being fully vaccinated.

In short, the CDC’s updated masking and social distancing guidelines prompt employers to prepare their revised masking and social distancing policies. In doing so, employers should continue to monitor state and local requirements, as well as further updated guidance from the CDC, EEOC, and OSHA (recall that OSHA’s emergency temporary standard aimed to protect workers from COVID-19 is still undergoing White House review).

In addition to asking whether an employee has gotten vaccinated, can an employer ask their employees if they plan to get vaccinated?

The EEOC has stated that it is a permissible inquiry for an employer to ask about an employee’s current vaccination status (i.e., “Are you vaccinated?”), as there are many reasons why an employee may not be vaccinated that may or may not be disability-related. Therefore, asking an employee if they have been vaccinated is not a disability-related inquiry. Similarly, asking an employee if they plan to be vaccinated would not be considered a disability-related inquiry, as there are many reasons why an employee may or may not plan to get the COVID-19 vaccine that are unrelated to any disability. Employers should be cautious about asking any subsequent questions that may elicit information about a disability and therefore subject the employer to the pertinent ADA standards (i.e., “Why don’t you plan to get vaccinated?”).

Practical Tip Employers requiring proof of employees’ vaccination status from a pharmacy or the employees’ personal health care provider should make clear to their employees not to provide any other medical information as part of the proof in order to avoid implicating the ADA.

A sales employee whose workplace has implemented an incentivized vaccination program and is moving toward resuming on-site work has chosen not to get vaccinated based on personal views unrelated to religious beliefs or medical conditions, but has asked to continue working remotely and not interacting with clients in-person because he “is at risk for severe COVID-19.” Is this sales employee entitled to his requested accommodation?

The ADA requires employers to provide a reasonable accommodation to employees who have medical conditions that place them at a “higher risk for severe illness” if they contract COVID-19. However, as a rule of thumb, employees do not have a right to the accommodation of their choice.

In this circumstance, the employer should first determine whether the employee indeed has an underlying medical condition that places the employee at higher risk for severe COVID-19. The employer may do so via a tailored medical questionnaire that identifies the already in place office safety protocols and seeks information regarding: (1) the nature of the employee’s medical condition and the risks and restrictions relating to the same, and (2) whether there are any measures the employee or the employer could take that would allow the employee to work in the office without posing a direct threat to the employee’s own health or safety or that of others in the workplace. Notably, one such measure might be that the employee—who has no medical or religious basis for declining vaccination to date—becomes fully vaccinated against COVID-19.

Based on the feedback of the employee’s health care provider, the employer should determine what, if any, reasonable accommodations it could put in place that would allow the employee to continue performing the essential functions of the job without imposing an undue hardship on the employer. This may include requiring the employee to return to the office with additional workplace safety modifications. Alternatively—if the employee’s health care provider indicates that a safe return to the office is not presently possible—this may include considering extended, but not indefinite, teleworking.

Because determinations related to reasonable accommodations under the ADA involve sensitive and fact-specific determinations, employers should consult legal counsel before effecting them.

My company has personnel who cannot do their job remotely. Moreover, when an employee gets sick, it is hugely disruptive to our business operations. Can we require employees to be fully vaccinated?

Yes, so long as doing so is not otherwise prohibited under state or local law. EEOC-issued guidance provides that employers may implement a mandatory vaccination policy as long as they comply with federal employment laws that prohibit discrimination on the basis of religion and disability. In other words, employers must reasonably accommodate employees who are not vaccinated due to a genuinely held religious belief or medical condition, so long as doing so would not result in a direct threat to the health or safety of the employee or others or create an undue hardship for the employer. If an employer determines that there is no such reasonable accommodation that may be implemented for an employee who is unvaccinated due to religious belief or disability, then it is lawful for an employer to exclude that person from the workplace.

I have heard my state is considering legislation that would prohibit employer-mandated vaccination. Can my company implement a mandatory vaccination program before such proposed legislationtakes effect?

Yes. An employer may implement a mandatory vaccination program, so long as there is no state or local law that prohibits such a program at the time it is implemented. And, doing so will allow the employer to maximize workplace vaccination rates.

Because several states—including Illinois, Indiana and Wisconsin—have proposed legislation that would either entirely prohibit or place significant limitations on employer vaccination programs, employers should be prepared to quickly modify or eliminate mandatory vaccination policies if an applicable state law barring them is enacted.

For the most up-to-date information on state and local law prohibiting mandatory vaccination policies, contact your local Quarles & Brady attorney.

Does an employee requesting a medical exemption from a mandatory vaccination policy have to show documentation of their medical condition?

An employee requesting a medical exemption is not automatically required to show documentation for the medical condition. However, because an employee seeking an exemption from his or her employer’s mandatory vaccination policy on the basis of a disability is making an accommodation request under the ADA, in most cases employers are permitted to request “reasonable documentation” substantiating that there is a need for accommodation. More specifically, under the ADA, an employer may—but is not required to—ask an employee for “reasonable documentation” regarding their disability when the disability is not obvious. If an employee’s disability or need for an accommodation is not obvious, and reasonable medical documentation is requested but not provided, then the employee is not entitled to an accommodation.

In the context of requests for exemption from a vaccination requirement, this means that an employer is entitled to verify via documentation that the individual has a covered disability which would prohibit the employee from getting vaccinated, and may deny an exemption request in the absence of such reasonable documentation.

Can an employer of a unionized workforce implement a mandatory vaccination program?

Employers of unionized workforces that seek to implement mandatory vaccination programs must assess a number of interrelated considerations. Preliminarily, it is likely that such a vaccination program would be considered a mandatory subject of bargaining. Thus, prior to implementing any such program, a unionized employer must determine whether the applicable collective bargaining agreement (CBA) contains any language that allows or prohibits management’s implementation of such a program. If the CBA already allows for implementation of such a program, no further bargaining is necessary. However, if the CBA prohibits such a program, then such a program cannot be implemented absent the consent of the union.

In the unlikely event the CBA contains a provision that would permit the employer to implement a mandatory vaccination program, then the employer may do so without the need for further bargaining. However, given the sensitivity of policies related to COVID-19 and vaccinations in particular, advance notice to the union by the employer of its intent to implement such a policy may be advisable.

If the CBA does not address the implementation of such programs, and the CBA does not contain a clause preventing bargaining during the term of the contract, then the employer should bargain with the union over mandatory employee vaccination in good faith. The employer should not implement the program until either an agreement is reached or the parties reach impasse.

If the relevant CBA does contain a clause prohibiting mid-term bargaining, then the employer likely cannot implement or bargain such a program, except in the unlikely event that the union agrees to make an exception.

Because the collective bargaining obligation and dynamic between management and the union is unique to each workplace, employers should consult legal counsel before attempting to implement mandatory vaccination programs in unionized work environments.

This is a fluid and rapidly changing situation and these resources are current only as of the date of publication. We recommend that you contact your local Quarles & Brady attorney regarding the most up-to-date information or with any other questions regarding this subject matter, or contact Otto Immel at (239) 659-504 / [email protected], Lindsey Davis at (414) 277-3073 / [email protected], Judith Williams-Killacky at (414) 277-5439 / [email protected], Kaitlin Phillips at (312) 715.5179 / [email protected] or Brenna Wildt at (414) 277-5328 / [email protected].