Last week, we held another webinar to discuss some of the most frequently asked questions regarding employers and vaccines. Our program was recorded and can be found here.
Right now, Connecticut is ranked among the top states in vaccine distribution with over 1.4 million COVID-19 vaccinations administered. Connecticut is expected to receive an increased supply of COVID-19 vaccines over the coming weeks. As a result, the State is accelerating the vaccine distribution timeline. Now, individuals aged 45-54 years may begin scheduling vaccine appointments as of March 19, and individuals aged 16-44 years may tentatively begin scheduling appointments on April 5.
As vaccines become more available to the general public, the answers to some questions are coming into focus. While there are still many questions left to be answered, we anticipate further clarity in the months ahead. Here are a few questions we tried to answer in our webinar last week.
Question: Can employers mandate the vaccine as a condition of employment?
Yes, employers can mandate the COVID-19 vaccine per EEOC guidance. However, there are still outstanding questions as to whether employers can do so right now because the vaccine was approved by the Food & Drug Administration (FDA) through “Emergency Use Authorization.” Most employers are not yet mandating the vaccine and, as we discussed at the webinar, the safest course right now is to strongly encourage employees to get vaccinated. This may change as the vaccines receive full approval.
Question: If employers mandate vaccinations, what accommodations need to be provided?
If employers mandate vaccinations, employers must provide reasonable accommodations under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
If an employee refuses to get a vaccine, consider whether the employee has a qualified disability, whether the employee has a sincerely held religious belief, and whether the employee’s refusal to vaccinate poses a direct threat to the workplace. To evaluate whether an employee’s refusal to vaccinate may create a direct threat, employers should look at: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Before terminating an employee for refusing to vaccinate, also make sure to engage in the interactive process to determine whether a reasonable accommodation can be provided (such as continuing remote work, additional PPE, etc.), and does not present an undue hardship.
Question: An employee is eligible for a vaccine, but refuses to get one. Does the Employer still need to allow the employee to work from home?
Likely not, absent a medical condition or qualified disability. As a general rule, employers are not required to permit an employee to continue to work from home if they refuse to obtain an available vaccine but proceed with caution. The State continues to have guidance for employers that suggests that if employees can work from home, they are permitted to do so, and you want to consider the safety of the rest of your employees.
Question: Must employers provide paid time off (PTO) to employees for the purpose of getting vaccines?
If vaccination is mandatory, then yes. If vaccination is voluntary, then no. However, providing PTO for vaccination may be beneficial for an employer. It may encourage employees to get vaccinated, and it demonstrates that the employer cares about a safe workplace for employees. In addition, vaccination can be easily scheduled ahead of time.
Employers may also decide to provide other incentives that encourage employees to get vaccinated: covering the costs of vaccination (if any), additional pay, or a cash incentive. However, tread cautiously –providing incentives for vaccination may leave employers open to ADA compliance issues, as those who are unable to get vaccinated, either due to a disability or sincerely held religious belief, do not receive the same benefits. In addition, some states (like New York) are now requiring PTO for COVID-19 vaccinations, regardless of employer mandates.
Question: Can employers require proof of vaccination from employees?
Yes, an employer may request proof of vaccination from employees. However, employers must be sure not to elicit medical information about a disability and must keep all employee medical information confidential.
Question: What if an employer does not mandate vaccination?
If an employer does not mandate vaccination, then the employer should keep doing what it is doing: taking precautions such as mask-wearing, social distancing, isolating when an individual is exposed to COVID-19, and remote work, where feasible. Indeed, these are good practices even in a vaccinated workplace.
We are in a challenging phase of the pandemic. Vaccines are here, but not yet widespread, and the pandemic itself may be at the start of a third wave here in the United States (as it is in parts of Europe). Caution is advised.