What can employers do to require or encourage workers to be vaccinated against COVID-19?

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On July 29, President Biden announcement that federal employees must be vaccinated against COVID-19 or meet other conditions, including wearing masks and undergoing periodic testing for COVID-19 infection. A growing number of private employers also announced vaccine requirements for employees to return to work. This fact sheet examines what employers can and cannot do under current rules to require or encourage vaccination of their workers.

Can employers require employees to be vaccinated against COVID-19?

In general, yes, employers can require employees who physically enter the workplace to be vaccinated against COVID-19, and before the pandemic, others vaccination mandates from employers were enforced, such as the obligation to be vaccinated against influenza. For any vaccination mandate, key standards apply under federal law:

First, a mandatory workplace vaccination program must meet the Americans with Disabilities Act (ADA) standards of being “job related” and “in accordance with business necessities.” This involves making a decision about the security threat posed by unvaccinated employees. The determination will be based on facts and circumstances regarding the workplace and employment, for example whether the work is performed indoors or outdoors, or the frequency and duration of an employee’s interaction not vaccinated with other people. In addition, the determination must take into account the most recent medical knowledge on COVID-19, such as the level of spread of the virus in the community. The CDC is a key source of current medical knowledge about COVID-19.

Second, under the ADA, employers are generally required to provide reasonable accommodations to employees who, due to a disability (including pregnancy) do not get the COVID-19 vaccine. Under Title VII of the Civil Rights Act, reasonable accommodation is also required for employees who fail to comply due to sincere religious belief. Such accommodations are necessary unless they represent undue hardship, or substantial hardship or expense, for the employer. If it is determined that an unvaccinated employee could pose a safety threat, the employer must determine whether reasonable accommodation could reduce or eliminate this threat. For example, unvaccinated employees may be required to wear masks, undergo periodic testing for COVID-19, or have the choice of telecommuting.

Third, employers must not enforce the vaccination requirement in a way that treats employees differently – on the basis of race, color, religion, sex, national origin, location. age or genetic information – in violation of other federal equal opportunity (EO) laws.

Finally, the employer can ask employees about their vaccination status or require proof of vaccination. The ADA generally prohibits employers from investigating employee disabilities. However, EEOC guidelines say asking questions about COVID-19 vaccination status is not a disability-related investigation under the ADA, as there are many reasons people might not. be vaccinated. If an employee has not been vaccinated due to a disability or sincere religious belief or for some other reason protected by federal OE laws, as noted above, reasonable accommodation should be considered.

Can employers offer incentives to get vaccinated?

In general, yes, employers are allowed to offer incentives to workers to be vaccinated against COVID-19. These could be cash payments, gift cards, or other rewards or penalties. The EEOC guidance notes that federal law would generally not limit the size of these incentives, with one key exception noted below. The guidelines also say that employers can take other steps to encourage or facilitate vaccination without violating federal laws. This includes providing information to educate employees about the vaccine and its benefits and to answer common questions and concerns. Employers can also offer time off for vaccinations and to recover from any side effects. The American Rescue Plan Act makes tax credits available to employers to cover the cost of granting paid time off to employees to receive and recover COVID-19 vaccinations.

Special restrictions on incentives would apply for employers who offer a COVID vaccination program directly To employees. In fact, before the vaccine is administered, the CDC requires screening questions on medical history, allergies, pregnancy status, etc., and, where the employer or its agent directly provides the vaccine, these screening questions would constitute a disability-related investigation by the employer.

Under the ADA, disability-related investigations through an employer health program, including a workplace wellness program, are only permitted if participation in that program is voluntary. The definition of “voluntary” under the ADA, and whether this could include incentives, has been discussed. controversy and litigation. When the ADA was first implemented, the EEOC guidelines made it clear that a voluntary employer health or wellness program could not require participation or penalize employees for their failure. -participation. Then, in 2015, an EEOC regulation revised the definition of “voluntary” occupational health and wellness programs to include those that imposed substantial financial penalties – up to 30% of the cost of individual coverage. under the employer’s health plan. A federal court overturned this rule, ruling that the redefinition of “voluntary” was arbitrary and capricious. In 2020, the agency began work on revised regulations to allow incentives for wellness programs, but suspended operations in 2021.

When it comes to employer-provided COVID-19 vaccination programs, current EEOC guidelines allow incentives (which include both rewards and penalties) to participate if the incentives are not so important that ‘they are coercive. However, the agency does not provide any details on the extent of the inducement that would constitute coercion. The guidelines also make it clear that the incentive size limit – whatever it is – does not apply if an employer offers an incentive to employees to voluntarily provide documentation that they have received the COVID-19 vaccination. ‘a community supplier.

How Does the FDA’s Emergency Use Clearance Affect COVID-19 Mandates?

the US Department of Justice recently issued an advisory stating that employers and other entities are not prohibited from imposing vaccination requirements solely because the vaccine (s) are only available subject to emergency use authorization of the FDA (EUA). Previously, at least one federal lawsuit had been filed to challenge an employer’s mandate over the COVID-19 vaccine on the grounds that vaccines are still subject to the EUA. It is possible that further legal challenges to employers’ immunization mandates will arise.

State Laws and Employer Vaccine Requirements

In response to federal guidelines, legislation has been introduced in many states to prohibit or restrict employers, including public employers, from requiring COVID-19 vaccinations as a working condition. As of July 29, such legislation had been adopted in 7 states and was pending in two more. As a result, even when employers comply with all requirements of federal law, there is a possibility that vaccination warrants could be challenged under state laws.

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