Navigating a COVID-19 Workplace Vaccination Program

By Lisa Enkoff, MILR, SPHR

With recent emergency use approval by the U.S. Food and Drug Administration for the distribution of the Pfizer-BioNTech and Moderna COVID-19 vaccines, the question of mandating workplace vaccines has become more pressing than ever for employers. Here are key factors to consider when implementing a mandatory vaccination program.

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Regulatory & Legal Considerations

What Program is Right for Your Workplace? Mandatory, Hybrid, or Voluntary?


COVID-19 WORKPLACE VACCINATIONS – REGULATORY & LEGAL CONSIDERATIONS

REDW Human Resources Consultants are closely monitoring regulatory updates in this area. Please contact Lisa Enkoff with any questions.

Equal Employment Opportunity Commission (EEOC)

The EEOC issued guidance on December 16, 2020 about the COVID-19 vaccine. Mandatory programs may exist, but vaccine exemptions may occur based upon ADA disability or an employee’s religious beliefs under Title VII. Therefore, employers must evaluate these accommodation requests and determine if undue hardship exists.

Occupational & Safety Administration (OSHA)

OSHA has not yet provided any COVID-19 vaccine mandates, but has provided past guidance regarding flu vaccines. An employer may require a vaccine, but employees must be properly informed of its benefits. Also consider OSHA’s General Duty Clause, which requires “a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Two questions arise:

  1. Will a voluntary vaccine program put the workforce at risk? (Negligence claims from employees could surface under this scenario as well.)
  2. Will employees refuse vaccination because of a reasonable belief that their medical conditions create a real danger of serious illness or death (i.e., serious allergic reaction)?

OSHA whistleblower rights may confer protection to employees under these scenarios. Also, workers’ compensation laws could apply to harm and side effects allegedly caused by COVID-19 vaccinations; this will vary case-by-case and state-by-state.

National Labor Relations Act (NLRA)

The NLRA protects employees’ rights to collectively discuss, object to, or protest an employer-mandated vaccination. Any employer’s reaction to this activity, regardless of whether its employees are currently unionized, should be carefully considered to avoid unfair labor practice charges.

For those employers who are currently unionized, include an assessment of collective bargaining provisions as part of the decision-making process for any vaccination programs.

State Laws

Some states have laws providing for mandatory vaccinations in the event of a public health emergency, and some, at present, only appear to require health care workers, such as hospital employees, to be immunized for certain transmissible illnesses which pre-date COVID. Medical, religious, or physical exemption provisions in such situations vary by state. Check your local government’s vaccination requirements for specifics.

REDW Human Resources Consultants will continue to monitor developments and are available to advise on your state’s requirements.

As some areas have not yet articulated broad public mandates, employer policies for vaccination programs may play a key role in administration of COVID-19 vaccines.

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WHAT COVID-19 VACCINATION PROGRAM IS RIGHT FOR YOUR WORKPLACE? MANDATORY, HYBRID, OR VOLUNTARY?

Your trusted REDW Human Resources Consultants recommend that employers first examine their business and essential job functions. —Is there high risk of exposure and close contact?

Workplace Considerations

Consider some of the following factors put forth by the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) in their August 18 advisory memo. Business needs and direct threats to the workplace should also be considered when determining the most suitable vaccination approach—whether mandatory, hybrid, or voluntary:

  • Setting: Is the work setting indoors or outdoors? Does your building have operable windows? Have you upgraded your ventilation system according to state-recommended guidelines?
  • Proximity: Are employees and those they regularly interact with (patients, customers, coworkers) in close proximity to each other?
  • Contact Types: Do employees touch shared surfaces or common items, and/or have physical contact with those the business serves (i.e., customers or patients)?
  • Duration/Frequency: How long are these different interactions with others, and what is the daily frequency?
  • Other Risk Factors: Is the employee interacting with populations at high risk for exposure to COVID-19, or who have contracted COVID-19?

COVID-19 Vaccine – Employee Concerns

Evaluate the proposed program impact on safety, morale, recruitment, and retention. Recent December polls indicate a range of 71% to 84% of Americans being willing to take the vaccine, an increase from prior ranges of 50% to 64% of Americans. Frequently cited concerns are its speed of development and side effect uncertainty, and that these would be the first ever mRNA vaccines approved for use.

Many in the medical field, (including public health experts from Yale,) have been working to educate the public about the speed of the vaccine’s development being due to scientific process efficiencies, the competence (and statistics) of parallel phase testing and “event-driven” trials, and the preparation of manufacturing facilities well in advance of vaccine finalization. On December 18, the CDC also published information on understanding the efficacy of COVID-19 mRNA vaccines.

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Implementing a COVID-19 Workplace Vaccination Program

Close contact in high-risk settings like healthcare could point to a mandatory program. Wild card factors to this approach include vaccine availability and effectiveness.  Mandatory programs will require policies for enforcement, accommodations, HIPAA-compliant recordkeeping, and workers’ compensation management. Alternatively, employers may opt for a hybrid model that mandates vaccines for certain positions—specifically those deemed to be in higher risk settings, such as customer or patient-facing, and/or requiring frequent business travel.

In December 2020, the EEOC also specified that employers mandating and administering vaccines must meet the ADA standard of being “job-related and consistent with business necessity” when asking any vaccine pre-screening questions. The purpose of these questions would be to determine if there are any medical reasons preventing an employee from receiving the vaccine. To meet the ADA standard, the EEOC has specified that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Further, with both mandatory and hybrid programs, a robust process needs to be in place for accommodations. Should an employee request a disability or religious accommodation in response to a vaccine mandate, vaccine alternatives may consist of masks and personal protective equipment (PPE), remote work, alternating department schedules or alternating schedules within departments, and/or designating socially-distanced workspaces and locations.

Alternatively, a voluntary program could be incorporated into an overall incentivized wellness program, encouraging vaccinations by providing information and the vaccine itself to employees at no cost. While such a program bypasses the potential for employee objections and is administratively less complex, in addition to covering costs, an employer will also need to consider the impact on workplace safety.

Similar to mandatory and hybrid vaccination programs, an employer must give consideration to any vaccine pre-screening questions asked of employees with a voluntary program. The EEOC indicated that, “if an employer has offered a vaccination to employees on a voluntary basis (i.e., employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.” Further, an employer may not retaliate against an employee for refusing to answer the questions, and may elect to decline administering the vaccine.

In any of the three scenarios, be sure to communicate messaging points on the program rationale in a timely manner to allow employees an opportunity for feedback and time to prepare.

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Remember the Core Pandemic Approach: Masks, Hand-Washing and Social Distancing

Even with vaccine availability, workplace safety policies need to exist for masks, PPE, sanitation, social distancing, medical screening, testing, quarantining, remote work, and paid/unpaid leave. Considering that enough vaccines will need to be produced to provide for the general public, and that it will take time to do so, these measures remain vital to continue to slow the spread of the virus.

Questions also remain as to whether vaccine recipients will opt to get the prescribed second dose of both vaccines, but medical guidance indicates recipients of the first dose should be strongly encouraged to follow-through with the second to ensure vaccine efficacy. Even if a single-dose vaccine is approved, employers should still be prepared to address needs for time off and remote work opportunities.

The CDC has advised that opportunity for COVID-19 infection still exists before and after receiving the vaccine, as it will take a few weeks to build immunity.

REDW HUMAN RESOURCES CONSULTANTS ARE HERE TO HELP

Remaining informed of current COVID-19 operating practices will be key to managing your business, and we will continue to monitor the situations outlined here. Please reach out to REDW Human Resources Consultants Lisa Enkoff or Cristin Heyns-Bousliman for any questions regarding best practices and guidance for COVID-19 vaccines in the workplace.

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