Employers around the world have been relieved with the advent of COVID-19 vaccines. U.S. employers have been seeking guidance regarding the vaccination policies and laws for the workplace. The U.S. Equal Employment Opportunity Commission (EEOC) recently published an update regarding the laws for the COVID-19 pandemic.

In this blog, we discuss some commonly asked questions about the vaccination policies in the workplace in compliance with the Americans with Disabilities Act (ADA) and Rehabilitation Act.

Q. Can employers encourage or incentivize the employees to be vaccinated?

A. Employers may request documentation or any other confirmation for the vaccination in the community and provide incentives to the employees. They may provide the vaccinated employees paid time off for recovery by offering monetary or non-monetary incentives. It should be noted that the employees must be careful of the tax treatment of these incentives.

Employers can encourage their employees to be vaccinated by following norms such as:

• Establishing policies that allow them to take paid leaves to be vaccinated in the community.

• Providing transportations to offsite clinics.

• Sharing updates about community locations offering the vaccination.

• Providing paid time

Q. May an employer revoke a job offer if they need the applicant to start immediately but the individual has COVID-19 or its symptoms?

A. Following the Centers for Disease Control (CDC) guidance, if an individual is not safe to enter the workplace, the employer may withdraw the job offer.

Q. Once the COVID-19 vaccine is fully authorized, can an employer mandate it for all the employees, and terminate employees who refuse to follow the same?

Presently, the EEOC guidance allows the employer to terminate the employees who refuse to get vaccinated. However, it should be noted that the EEOC guidance does not pose as law and could be challenged in court. It should also be noted that certain states prohibit employers from discriminating against employees who may refuse the vaccine.

Exceptions:

a. The ADA requires employers to provide accommodations to employees with any underlying disabilities that may prevent them from being vaccinated.

b. Under Title VII of the Civil Rights Act of 1964, if an employee holds any religious beliefs that prevent them from getting a vaccine, the employer is required to provide them with reasonable accommodations.

Q. Can an employee’s side effects or adverse reaction to the vaccine be compensated under the workers’ compensation claim?

A. If an employee has been vaccinated because of the mandatory claims made by the employer, an adverse reaction would be compensable. Since the vaccine was considered a requirement for work, in this case, it can be claimed under the workers’ compensation.

If the vaccine was offered and advertised by the employer, workers’ compensation can be claimed for an adverse reaction, irrespective of whether the vaccination was voluntary and not mandated in the workplace.

Note: The outcome may depend on the claim and jurisdiction for the compensation.

Q. What kind of modifications should the employers provide to employees who may not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?

A. An employee who does not get vaccinated due to disabilities or sincerely held religious beliefs, practices, or observance should be provided a reasonable accommodation that may not pose any undue hardships on the employer’s business.

An employee who does not get vaccinated due to pregnancy may be entitled to adjustments at work, given that the employer makes modifications or exceptions for other employees.

Q. Once the government restrictions on stay-at-home orders are modified, what steps can employers take to screen employees for COVID-19 when entering the workplace?

The ADA allows employers to enquire employees about their disabilities and conduct medical examinations if the inquiries are related to their job and required for the business. These inquiries and medical exams can be considered in cases where excluding employees with medical conditions may prove to be a direct threat to health or safety.

A direct threat can be determines based on the best available medical evidence, given that the screening is consistent with the CDC guidance.

Employers should, however, ensure that they do not conduct any unlawful treatment related to the screening and exclusion.

Q. What does the CDC guidance on masks imply?

A. Following the CDC guidance, the employees who have been fully vaccinated may avoid wearing masks and physical distancing, except when required by the federal, state, local, tribal, or territorial laws, rules, and regulations, including workplace guidance.

Under the EEOC guidance, ADA requires an employer to maintain the confidentiality of an employee’s documentation related to the vaccine. Employers may find it difficult to define their mask policies as the vaccinated employees may choose to forego their masks. This may lead to divides and discrimination among the workforce.

Q. What are the guidelines to conduct vaccination on-site at the workplace?

A. According to the CDC guidelines, businesses can host vaccination clinics at their workplace keeping the following points in mind:

• The COVID-19 vaccination program should be planned with inputs from the management, human resources, employees, and labor representatives.

• Employers should get in touch with the health department in their jurisdiction for guidance with the implementation of the vaccination program.

• Employers may engage with a community vaccination provider vendor to deliver the vaccination services.

• The vaccination clinics must prepare for potential anaphylaxis after vaccination.

• The clinics should be hosted during work hours, and they should be free of charge.

• There should be no form of discrimination among the employees with the vaccination clinic.

Q. What does a reasonable accommodation for a vaccine policy look like?

A. Under the EEOC guidance, employers are required to provide reasonable accommodation to employees who may not get vaccinated due to a disability, religious beliefs, or pregnancy. Such employees may be expected to wear a mask, maintain social distancing, work a modified shift, or telework, among other things. In addition to this, employers are also required to accommodate employees who, despite being vaccinated, may still be immunocompromised.

In Conclusion

Organizations can support vaccination beyond their work into their networks, communities, and industries. Employers must plan ahead and develop strategies to manage the variability in the vaccination status among their workforce. Additionally, there is also a need for evaluating the health protocols, meetings and collaboration norms, protocols for shifting back to an in-office setup, and travel policies.

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