Covid-19 Vaccine Eligibility Update:
As of Tuesday, April 6, 2021, individuals in New York State ages 16 and up are eligible for a COVID-19 vaccination. Several other states have already announced this expansion. If they have not, they will expand eligibility to all individuals 16 years of age and up by May 1st, per the White House. People ages 16 or 17 can only receive a Pfizer/BioNTech vaccine, as it is the only option currently authorized for that population. The vaccines made by Moderna and Johnson & Johnson are authorized for adults 18 and older. The best way to determine available vaccination locations is your state’s health department website. Find its website at this website. At that site, you can determine your vaccine eligibility and schedule appointments. You can also visit Vaccinefinder.org to find a vaccine provider near you.
The most widely asked question by employers is whether they can require their employees to obtain the Covid-19 vaccine. Under federal law, the answer is “yes”, with certain exceptions. This weeks Newsletter includes considerations for employers as it relates to requiring employees to obtain Covid-19 vaccination before returning to work. Employers need to know what policies they can establish to ensure compliance with applicable laws while maintaining a safe workplace.
Key Legal Employer Considerations:
The Equal Employment Opportunity Commission (EEOC) issued guidance that allows employers to implement a policy requiring employees to be vaccinated against COVID-19. Despite this, there are important employment issues to consider. The first consideration is that the vaccine must be generally available to the employee population. Once the vaccine is available to the employee population in question, subject to a few exceptions, an employer can mandate that employees be vaccinated. For example, certain industries such as healthcare workers, are already eligible for vaccination and have been for some time. For other industries, individuals may still be restricted by age.
Employers must also consider the Americans with Disabilities Act (ADA). Employers must provide exceptions to a mandatory vaccine policy for individuals who cannot obtain a vaccine due to their own personal health or disability. These individuals must be reasonably accommodated to enable them to perform the essential functions of their job. Such accommodations could include excusing the employee from getting the vaccine and permitting the employee to continue wearing PPE in the workplace or work from home.
The third consideration is that employers must excuse employees who have a sincerely held religious belief which prohibits them from getting the vaccine. “Sincerely held” means a real religious belief, and not one developed to avoid the vaccine. If an employee has a sincerely held religious belief, the employer must provide that employee with a reasonable accommodation, like those already mentioned.
Last, employers cannot mandate that unionized workers get vaccinated, this must be collectively bargain. Without being collectively bargained, a mandatory vaccine policy could raise issues under the National Labor Relations Act.
It is always suggested that employers consult their labor and employment attorney before setting any policies such as those suggested here. Additionally, if the employer does require its employees to be vaccinated, the time spent obtaining the vaccine may be deemed “working time” under the Fair Labor Standards Act and analogous state law.
Can employers encourage employees to receive the COVID-19 vaccination?
Employers can encourage vaccination, however there are limitations. A vaccination monetary bonus is not recommended unless the employer will also provide bonuses to those with disability or religious reasons for not receiving the vaccine. The employer could instead provide small incentives such as a sticker, water bottle or a similar gift. If the employer wants to provide a greater incentive, such as additional paid time off, a cash gift or something else of significance, the employer should first consult legal counsel.
Requesting proof of vaccination:
Whether or not the vaccination has been mandated by the employer, employers may ask employees if they have received a COVID-19 vaccination. They can request proof (such as the vaccination cards that many states have been handing out upon vaccination as evidence of vaccine), but the employer must ensure that the vaccination record is kept confidential. Each employer should consult legal counsel to assure it has proper procedures in place to protect the employee confidentiality and if it is appropriate to require the submission of such records at all.