What Employers Need to Know About Vaccination Mandates and Incentive Programs

Employers are faced with a variety of legal questions when determining whether to mandate COVID-19 vaccinations and other safety protocols in the workplace. These questions are further complicated by varying opinions on the safety of vaccines and whether such mandates impose upon the privacy rights of employees.  This article outlines an employer’s legal rights in light of those concerns.

COVID-19 Vaccinations Mandates and Exceptions

The Equal Employment Opportunity Commission (“EEOC”) has stated that employers are free to mandate vaccinations in the workplace and to require proof of vaccination status. However, there are two exceptions to this mandate.  First, the Americans with Disabilities Act (“ADA”) requires employers to provide “reasonable accommodations” for those objecting to the vaccine based on one’s medical condition.  Accommodations may include, but are not limited to, continued mask wearing and social distancing, a private office or workplace, remote working, or even a leave of absence. Employees claiming they have a medical condition that prevents them from getting vaccinated should be required to submit documentation from a treating physician substantiating the need for an exemption.

Second, employees may claim that sincerely held religious beliefs prevent them from receiving the vaccination. As with the duty to provide reasonable accommodations for disabilities under the ADA, Title VII requires employers to reasonably accommodate religious beliefs unless doing so would pose an undue hardship.

Whether an employee asserts a medical exemption or a religious exemption, employers should consult with legal counsel before claiming that a reasonable accommodation is not possible. Failure to provide a “reasonable accommodation” is fact sensitive and may tend to screen out individuals with medical or religious objections, thereby giving rise to a discrimination claim.

Employers mandating the vaccine should develop written policies that provide sufficient time for employees to get vaccinated and include a carve out for those exceptions to the mandate.

Alternatives to Mandatory Testing

In lieu of mandating the vaccine, some employers are choosing to offer incentives to have their employees vaccinated. The EEOC has approved the use of incentives provided they are not so substantial as to be deemed coercive such that an employee would feel pressured to disclose his or her medical condition to the employer. Alternatively, other employers are requiring unvaccinated employees to get tested on a weekly or biweekly basis and to continue to wear masks and/or engage in other social distancing protocols. While both approaches may stop short of mandating the vaccine, the ultimate effect is to encourage employees to get vaccinated.

Cost of the Vaccine and COVID-Testing

The EEOC has stated that if an employer requires an employee it reasonably believes will pose a “direct threat” to the health and safety of themselves or others to be examined by a health care professional of the employer’s choice, then the employer must pay all costs associated with the test. In addition, travel time and test-taking time in connection with a mandated vaccine during work hours is compensable under the Fair Labor Standards Act. Additionally, the EEOC has stated that the employer is most likely responsible for travel time and test-taking time for those employees required to undergo COVID-19 testing on their day off if the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic.

Conclusion

Subject to medical and religious exemptions, employers are free to mandate the COVID-19 vaccine. Alternatively, employers may offer incentives to vaccinations or implement regular testing and/or other safety protocols in order to protect the workplace. Employees who resist these policies may have little legal protection and may be subject to termination by employers seeking to protect other individuals in the workplace. However, even in these situations, employers should be careful to consult with legal counsel in order to avoid a discrimination or wrongful termination claim. Employers are navigating uncharted territory. Only time and inevitable litigation will truly determine whether the employer’s concern for workplace safety trumps employee concerns about vaccine safety.

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