Can my practice require our employees to get the COVID-19 vaccine?
Generally speaking, an employer can mandate that employees and applicants receive the COVID-19 vaccine, subject to the following important exceptions.
Under Title VII of the Civil Rights Act of 1964, employers are required to provide reasonable accommodations to employees that religious beliefs prevent them from getting a vaccine.
Similarly, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with underlying disabilities that prevent them from being vaccinated.
Employers should also be mindful of Title II of the Genetic Information Nondiscrimination Act of 2008 when formulating vaccination medical screening questions, which prohibits an employer or a doctor on behalf of an employer from asking questions about genetic information.
The Equal Employment Opportunity Commission (EEOC) issued federal guidance in December 2020 stating that mandatory COVID vaccines are not prohibited under the Americans with Disabilities Act and could potentially be a condition of continued employment.
Different legal and HR considerations will affect each workforce differently, and there is no one-size-fits-all approach.
An employer’s decision as to whether they should mandate vaccines will necessarily be informed by myriad considerations and should be made in consultation with in-house and outside counsel.
These include logistical constraints around supply; distribution and administration challenges; evolving public health policy particularly under a new federal administration; potential employee concerns about vaccines; and local state and community considerations.
I want to require employees to get the vaccine, but don't want to expose my practice to the liability. What should I do?
We advise that employers strongly encourage employees to take it, and require employees sign a “declination” form if they choose not to.
What if an employee chooses to sign a declination form?
If the employee chooses not to receive the vaccination and signs the declination form, the employee should be required to follow more stringent PPE protocol than other employees. Additional safeguards like lunch breaks socially distanced from others would be advised.
What could be the employer liability for requiring vaccinations?
Mandating employees to take any vaccine opens a host of liability issues for the employer.
- If they get sick or have a bad reaction
- If they do not want to take the vaccine due to a pre-existing condition
- If it is against their religious beliefs
Can an employee’s adverse reaction to the vaccine be considered a compensable workers’ compensation claim?
If an employer mandates that employees be vaccinated, it is likely that a worker’s compensation claim filed by an employee with an adverse reaction would be found compensable, as the vaccine could be seen as a requirement for work.
If an employer offers the vaccine and potentially advertises its availability through company emails and signage, an employee that files a claim for an adverse reaction may be granted workers’ compensation benefits even if vaccination is voluntary and not mandated by an employer.
Employees who decide to be vaccinated on their own — without any requirement, influence, or advertisement from their employers — may still be able to file workers’ compensation claims due to adverse reactions.
To be deemed compensable, however, an employee would need to prove that an injury was related and/or connected to the course and scope of employment and meet compensability requirements within the relevant jurisdiction.
In all of the above cases — and as in all workers’ compensation claims — the facts of a claim and jurisdiction will ultimately determine the outcome.
Can employers encourage and incentivize their employees to be vaccinated?
Yes, employers may want to consider these steps to encourage and incentivize vaccination:
- Share information with employees about the importance of the COVID-19 vaccination.
- Allow employees to take paid leave to get the COVID-19 vaccination.
- Provide additional paid time off for recovery from side effects.
- Offer cash or non-cash incentives to employees who get vaccinated.
*Be mindful of the appropriate tax treatment of these incentives, as well as The Employee Retirement Income Security Act of 1974 (ERISA) compliance, reporting, HIPAA privacy, and ACA requirements, particularly if more than a de minimis incentive is being considered.