Developing an Effective Vaccination Policy February 10, 2021 by SixFifty

Reasonable Accommodations EEOC guidance issued in December : https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D

Federal Guidance

  • The equal employment opportunity commission issued guidance on December 16,2020 concerning vaccines and the applicability of various EEO laws
  • Employers can generally require that employees receive the COVID-19 vaccine to enter their workplaces but may need to provide reasonable accommodations for individuals with medical conditions or religious beliefs that preclude them from being vaccinated.
  • Slide deck will be sent out to webinar registrants - post with these notes
  • Businesses can require employees to vaccinate but there is currently no requirement that employers mandate vaccines for their employees.
    • This means businesses get to make the choice themselves wether or not to require vaccinations.
  • OSHA requires a place of employment free from recognized hazards that could cause harm
    • This could be argued that vaccination is a requirement
  • State and local health agencies could mandate 

State Guidance (in progress with the session - we will have better information after March 5th)

  • Emergency powers would terminate automatically when 1.7 million Utahns are vaccinated and/or contracted COVID-19 & recovered  (HB 294)
  • Prohibit businesses from requiring vaccination verification from the Utah Statewide Immunization System before providing services (HB 117)
  • Prohibit government from requiring the COVID-19 vaccine in order to receive any sort of service/benefit from the government (HB308)
    • Not applicable to private businesses
  • UOSH - guidance on mitigating & preventing the spread of COVID-19 in the workplace
    • Issued January 29,2021
    • For planning assistance - not a standard or regulation
    • Suggests making vaccines available at no cost to eligible employees and providing training on its benefits
    • Reminds that even vaccinated workers must continue to follow other guidelines (face masks, social distancing, etc.) until better information is available

Q: If we are currently providing viral covid testing to onsite employees if they receive the covid vaccine do we need to continue testing them?

A: It depends.

  • If the testing you are doing is your own choice and not required from a governing body than it is up to you
  • If you are a business (school for example) that is under mandated rules for testing then you still have to adhere to the mandate.

Vaccination Policy Options

  • Require vaccinations
    • Potential Benefits
      • Protect employees, customers, partners, others who enter the worksite
      • Reduce employee sick days and need for medical care
      • Reduce risk of having to close business because of an outbreak
      • Reduce the risk of civil liability or administrative enforcement action
      • Further public health benefits of vaccinations
    • Potential Drawbacks
      • Divert resources to administering the vaccination policy
      • Could negatively affect employee morale and retention
      • Increase risk of discrimination suits regardig accomodations
      • Fewer benefits in certain industries
  • Encourage vaccinations
    • Potential Benefits
      • Some protection for employees, customers, and others who enter worksite
      • Some reduction of employee sick days
      • Some reduction of risk having to close business
      • Some reduction of risk of civil liability or administrative enforcement action
    • Potential Drawbacks
      • Still diverts resources to administer policy
      • May still affect employee morale and retention
  • Do nothing

Best Practices for Vaccine Policy - General

  • Create a clear, written policy
  • Distribute the policy to all employees
  • Explain the reason for the policy decision
    • Example: “At SixFifty, we are committed to the safety of our employees, customers, and all others who enter our workspace….”
  • Provide a clear contact point for questions about the policy

Best Practice for requiring Vaccine Policy

  • Do not administer the vaccine or contract with a third party to administer the vaccine
    • The Covid-19 vaccines require that certain medical questions be asked before they can be administered, and the EOC has concluded that asking these questions constitutes a “medical examination” under the Americans with Disabilities Act.
  • Pay individuals for time spent being vaccinated (travel to vaccination site, vaccination and sick day after vaccination if needed)
  • Provide a clear process for individuals to verify that they have been vaccinated or to seek an exemption from the vaccine requirement because of a disability or sincerely held religious belief
    • Provide a standard vaccine verification form with the vaccination process
    • If individuals are requesting an exemption because of a disability, instruct them not to disclose their disability, diagnosis or any other personal medical information on the form.
  • Explain that a representative of the company will reach out to individuals who request an exemption form the policy to discuss their specific situation
  • Explain that the company will not discharge or discipline employees who REQUEST an exemption from the policy in good faith.

Q: Can a business fire an employee who refuses to receive the covid 19 vaccine but has not requested an exemption because of a disability or religious belief?

A: MAYBE

  • The ADA allows an employer to have a qualification standard that includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace (EEOC guidance)
  • How likely is an unvaccinated individual to expose others at work to Covid-19?
  • Businesses are required to provide a reasonable accommodation unless it would pose an “undue burden.:
    • An undue burden under the ADA means significant difficulty or expense
    • An undue burden under title VII means more than a de minimis cost or burden on the employer.

Best practices for vaccine policy that is voluntary

  • Pay individuals for time being spent getting vaccinated
  • Offer an incentive
    • One time payment toward employee health insurance premiums for example
    • Be thoughtful about those who can’t get vaccinated (like those who are pregnant) and if they should have access to the incentive
  • Ask individuals to submit verification that they have been vaccinated so company can monitor success of policy
  • Explain that employee will not face adverse employment action if they decide not to be vaccinated
  • SixFifty solution - Document generation engine tool this will be offered to free for anyone who registered for the webinar

 

Q: If the law reaches a point where Vaccines are mandated in the workplace, are there any protections being considered to hold the vaccine manufacturer legally liable for adverse responses to the vaccine. With all the controversy surrounding the safety of the Covid-19 Vaccine, we need to have private individual protections significantly increased in legislation.

A: Businesses are probably reasonable in holding on to what the FDA has said

 

Q: Can you require some employees to be vaccinated and not others?

A: yes, but make sure that it is reasoned and based on their job role to avoid underlying biases

 

Q: Is there a legal definition for a "sincerely held religious belief"? Who decides how sincere the individual is with regards to their religious beliefs?

A: Yes, its complicated there are a number of factors that need to be considered. As a general rule, employers are advised to not question the sincerity of the belief. However, if you do have reason to question that belief on an objective basis for questioning (such as an employee stating to other employees that they don’t want to get vaccinated so they are just going to claim religious belief) then okay.
Does have to be a religious belief and not a political one. Courts don’t like to see business going into questioning religious beliefs. However if employees have an exemption medically then they are required to provide that documentation.

 

Q: Also, would the religious belief have to be applied to all vaccinations? Or could they have valid concerns about this particular vaccination?

A: There isn’t usually a religious belief specific to a medication but a general rule like not using animal products that can be applied for vaccinations that use animal products.

 

Q: Can we have a voluntary vaccine policy (strongly encourage) and provide monetary or other incentives to encourage employee vaccination?

A: Yes - voluntary programs that include incentives are allowed and typically see the best results — similar to other health benefit programs that companies also run (company-wide health challenge incentive programs have become very popular and run in similar ways)

 

Q: A number of our employees have to travel internationally. Can we require some to get vaccinations and not others?

A: Yes —  the best policy will be reflective of the actual risks associated with the business and, if different based on roles and job duties, people’s roles within the business.

 

Q: Do you recommend creating a written policy for businesses of all sizes (i.e. small businesses with less than 20 employees)?

A: We would advise a written policy for all sizes of businesses as a best practice unless you are in a situation where there is no real purpose in having one (for example, if a company has always been all-remote and COVID has not had any impact on that, vaccination is not really relevant because it will not change your remote business practice and your employees will not be potentially exposing one another to the virus)