As Covid vaccinations roll out, businesses are seeking ways to keep their workplaces and staff safe while tackling legal concerns such as vaccine mandating.
Health insurance company Humana and law firm Fisher Phillips took the topic head-on in a virtual webinar March 9, which covered vaccine incentives, medical confidentiality and proof requirements within the workplace.
Fisher Phillips’ partner Emily Litzinger noted the discussion was to be taken as general comments and fact-specific decisions based on current health guidelines, rather than medical advice.
“Our goal is to provide information to weigh the risks and the benefits to make informed decisions for business,” Litzinger said.
Within the legal landscape, Litzinger said long-story-short: employers can require their staff to be vaccinated. The FDA’s Emergency Use Authorization status means the government cannot mandate vaccines, but companies are left to their own discretion.
However, in order to require vaccinations in the workplace, she said employers need to clearly show staff members’ job duties include a risk that necessitates the vaccine – such as being exposed to elderly or high-risk groups.
“If an employee is able to work remotely or wear personal protective equipment (PPE), or they can move a work station or work a staggered shift – and that does not impose an undue hardship on them – then it does not appear permissible to mandate a vaccine,” Litzinger said.
Humana generally recommends making vaccinations voluntary rather than mandatory, she said. If necessary, employers planning to require the vaccine should bring in a third-party company, not contracted, in order to avoid handling employees’ medical information, she said.
Staff who are required to get vaccinated should be paid for the time it takes to receive both doses, Litzinger added. Employers should also consider an individual’s reaction to the vaccine, she said, which varies and could mean a need for recovery time.
The Occupational Safety and Health Administration (OSHA) has no specific vaccination standards currently in place, although the administration’s General Duty clause requires employers to keep a “workplace free of recognized hazards.” In alignment with that clause, OSHA issued guidance for “planning purposes” on Jan. 29, she said, which detailed ways to mitigate and prevent the virus’ spread among staff.
The move is likely a first step toward an Emergency Temporary Standard, Litzinger added, which could establish workplace requirements such as universal masking and social distancing.
“One take away from this webinar is that just because an employee gets vaccinated, it is not an exemption from masking and social distancing in the workplace,” she said. Official standards are anticipated to roll out next week, Litzinger added, so employers should wait until then before changing any policies.
When asked whether employers can share if a team member has been vaccinated, Litzinger noted “steer clear from disclosing anybody’s medical information or particular vaccination status.”
The American Disabilities Act (ADA) protects an employee’s medical information from inquiring employers, although Litzinger said “simply asking if an employee was vaccinated is not a medical inquiry.” When staff do get vaccinated, she said employers are allowed to ask for proof – but should not go beyond a “yes or no” answer.
Employers must comply with ADA standards in order to mandate the vaccine in a workplace, she noted.
When an employer does require workplace vaccinations, Litzinger said Title VII allows staff members with “sincerely-held religious beliefs” to opt out. She said Humana recommends companies assume these requests are legitimate without investigation. The bill is broadly defined, Litzinger noted, as religious beliefs do not have to be recognized by an accepted church.
“At the end of the day, the goal is to get more employees vaccinated, and you do not want to entangle yourself with other legal issues,” she said.
Some companies are rolling out incentives to encourage the Covid vaccine among staff, Litzinger noted, referred to as “wellness programs” by ADA. However, to be lawful, the incentives must be voluntary and reasonably minimal. Wellness programs with high incentives, such as more than a water bottle’s value, are less likely to be seen as voluntary, she said.
Litzinger noted that offering money as incentive could entangle an employer with the Fair Labor Standards Act, which could cause overtime concerns if an employee is paid outside worked hours.
Staff members who cannot receive the vaccine because of religious or medical reasons should be offered an alternative incentive, Litzinger added. Employers can offer options such as watching workplace safety videos, additional training or reading literature from the Centers for Disease Control and Prevention (CDC) to receive the same incentive, she noted.
“The idea is to publicly promote and encourage to get vaccinated, and to educate to clear up misinformation,” Litzinger said. Fisher Phillips offers a vaccine resource center including helpful information, which can be accessed here.
Humana’s Director of Associate Well-being, Erik Anderson, noted that the health insurance company offers two benefits to help businesses manage vaccine roll-out. The first is Special Paid Time Off (PTO), which addresses time-related concerns when scheduling inoculations.
“This is a benefit that we set up and made available to every associate of Humana,” Anderson said. “It is not earned, just granted. We added refreshed hours to help support associated through ongoing concerns.”
Humana also offers a self-reporting and monitoring program that allows associates to plan and keep track of Covid-related concerns. The program sends a reminder when time for an individual’s second dose, Anderson said, and allows Humana to monitor associate feedback.
“We view it as a great to plan and care for the future of the workplace,” Anderson said. “In general, we are promoting and encouraging self-reporting within the team… It is better for the community as we understand vaccine roll-out and what is effective.”
