FAQs Regarding Employer COVID-19 Vaccination Policies and Practices

During our highly-attended COVID-19: Vaccination and Later Stage Management Issues webinar in February, we reviewed the three main types of vaccination programs (i.e., mandatory, incentivized, and voluntary), discussed the advantages and disadvantages of each, and encouraged employers to begin taking steps to put into place their program of choice.

Throughout and following the webinar, we encouraged participants to submit their questions regarding vaccination policies and practices. With the aim of assisting employers to balance their desires to bring employees back to work and ensure a safe workplace, we have since compiled the most frequently asked questions and offered responses to them.

Q: My company is reluctant to mandate vaccination while the available COVID-19 vaccines remain under emergency use authorization (EUA). When do you anticipate the FDA will provide full approval of the vaccines?

A: In order for a vaccine to go from EUA to full approval from the FDA, vaccine manufacturers must keep collecting data and continuing trials until they have enough information to submit a Biologics License Application (BLA). There is no specific timeframe for the submission of a BLA to the FDA and therefore it is difficult to predict when the COVID-19 vaccines will be fully approved. However, manufacturers of currently available EUA COVID-19 vaccines—Pfizer, Moderna, and Johnson & Johnson—have all shared plans to submit their BLAs in the first half of 2021 with the goal of receiving full approval from the FDA by the end of the year.

Q: My company is considering a hybrid approach to vaccination (e.g., one that mandates vaccination for new employees but encourages it for existing employees; or one that mandates vaccination, but only for certain departments). Is such an approach permissible?

A: Yes. Companies with workforces that comprise various levels of COVID-19 exposure may legally implement a hybrid COVID-19 vaccination policy. In other words, certain sectors of the business may be subject to one type of vaccination policy while other sectors may be subject to a different policy. Such an approach is permissible as long as the employer has a legitimate, nondiscriminatory basis for delegating which sectors of their workforce will be subject to which type of vaccination policy. The same holds true for imposing a vaccination requirement as a condition of commencing employment, but not making it mandatory for current employees. As with most policies, the key is to treat all similarly situated employees the same.

Q: My company would like to strongly encourage vaccination by offering incentives. Are there legal limits on the incentives we may offer?

A: While the law does not prohibit employers from offering incentives to their employees to get vaccinated, it also does not offer clear guidance as to how far a company can legally go to incentivize COVID-19 vaccinations. In the absence of such guidance, employers should strike a balance between offering an incentive that is enticing enough to meaningfully encourage employees to get vaccinated, yet not so irresistible as to be viewed as “coercive” and potentially implicate health information privacy laws by “requiring” disclosure. Generally speaking, employers should consider factors such as the type of incentive offered, the perceived value of the incentive, and how the incentive is ultimately communicated to the employees.

Employers must also keep in mind that how they structure and implement their incentivized vaccination program could implicate various obligations under laws such as the Americans with Disabilities Act (ADA), Genetic Information Non-Disclosure Act (GINA), Employee Retirement Income Security Act (ERISA), Fair Labor Standards Act (FLSA), Health Insurance Portability and Accountability Act (HIPAA), as well as other state and local laws. Given the complexity and rapidly evolving legal landscape, employers considering implementing an incentive-based vaccination program are encouraged to seek guidance from local Quarles & Brady counsel to design an incentive that balances the legal risk with the desire to maximize vaccination rates.

Q: If my company mandates or strongly encourages vaccination, can it scale back the PPE and other COVID-19-related modifications put in place during the pandemic?

A: Recent guidance from the Centers for Disease Control and Prevention (CDC) for fully vaccinated people has shed some light on how employers may be able to modify their work environments as more of their employees receive the vaccine. The CDC has stated that fully vaccinated individuals may gather indoors with other fully vaccinated people without wearing a mask but should still avoid medium or large-sized gatherings. Under such guidance, employers may be able to lift their mask requirement for small-scale work environments where all employees present are fully vaccinated. According to the CDC, given the lack of data surrounding the vaccine’s effectiveness at stopping the transmission of COVID-19, masks and other COVID-19 precautions should still be used around unvaccinated employees whether in a small- or large-scale work environment.

The CDC has also stated that fully vaccinated individuals who have been exposed to someone with COVID-19 are not required to stay away from others unless they are exhibiting symptoms. Therefore, COVID-19 leave policies that address an employee’s need to quarantine after exposure to COVID-19 may be modified for vaccinated employees. Notably, CDC guidance for employers with travel-based workforces recommends that domestic and international travel still be delayed.

Q: Can and should my company require employees to provide documentation verifying vaccination status?

A: Companies that implement voluntary, employer-encouraged, or mandatory vaccination programs can require employees to provide documentation verifying vaccination status. Employers should request such proof of vaccination, including to substantiate entitlement to any vaccination incentives, and to address PPE, other workplace health and safety measures, and future COVID-19 absences. Any vaccination documentation should simply verify dates of vaccination, and whether all necessary doses have been administered. Such documentation may include a copy of an employee’s paper CDC vaccination card or access to an employee’s digital vaccine card (if and when available). Employers may retain such vaccination documentation, but must keep it confidential and treat it as medical documentation—stored separately from an employee's personnel file. In the alternative, employers may choose simply to maintain a confidential and secure log tracking if and when employees are fully vaccinated.

Q: What do my company's HR employees and managers need to know about employee religious and medical exemption requests?

A: Under Title VII of the Civil Rights Act of 1964 (Title VII) and the ADA, employers must provide reasonable accommodations to employees whose “sincerely held religious beliefs” and/or medical conditions prevent them from receiving the vaccine—unless the accommodation would pose an undue hardship.

With respect to a religious vaccination exemption request, an employer must provide an accommodation to an unvaccinated employee if doing so would not cause more than a minimal cost or burden on operations—an “undue hardship” under Title VII. Because this is a much lower burden than imposed on employers under the ADA, as covered below, requests for religious vaccination exemption are more likely to be denied. HR personnel should normally assume that an employee’s religious exemption request is based on a “sincerely held religious belief,” which refers to a firmly held moral and ethical belief. However, if there is an objective basis for questioning either the religious nature or the sincerity of an employee’s particular belief, HR can request additional supporting information from the employee. Because this is a highly sensitive area, and it may be unnecessary to address the issue, companies should consult counsel before questioning the sincerity of an employee’s religious belief.

With respect to medical vaccination exemption requests, an employer must provide an accommodation to an unvaccinated employee with a properly documented medical condition for which the COVID-19 vaccine is contraindicated, so long as doing so would not would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others (e.g., an unvaccinated individual exposing others in the workplace)—an “undue hardship” under the ADA. HR personnel should assess the following four factors to determine whether an unvaccinated employee would present such a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

Importantly, companies cannot automatically terminate an unvaccinated employee because the employee’s medical or religious vaccination exemption request would present a direct threat or burden to costs and operations. Instead, employers must provide reasonable accommodations, without incurring undue hardship, to minimize the risk of having an unvaccinated worker, which may include continued mask wearing, social distancing, and remote working. Including because these determinations are fact-specific and must be implemented in a careful manner, HR should consult counsel before determining which reasonable accommodations might be appropriate for unvaccinated employees.

Q: My company is reopening its physical locations. How do I handle a teleworking employee who refuses vaccination but is reluctant to return to work for fear of contracting COVID-19?

A: First, assess whether there is a potential duty to consider accommodating the teleworking employee’s refusal to vaccinate. If the employee is refusing vaccination due to a sincerely held religious belief, Title VII requires the employer to reasonably accommodate this employee, so long as doing so would not impose a cost or burden to operations. Similarly, if the employee is refusing vaccination due to a qualifying medical condition, the ADA requires the employer to reasonably accommodate this employee, to the extent that doing so would not pose a direct threat or undue hardship. (See response to question above).

If the employee does not have a religious belief or qualifying medical condition which prevents the employee from receiving vaccination, the employer has no legal obligation to accommodate the employee. There is no general duty to accommodate an overall fear of returning to work. Accordingly, if an employee refuses vaccination for a non-medical, non-religious reason, yet refuses to return to the workplace, an employer does not have to facilitate extended telework arrangements. When faced with this question, employers should evaluate the circumstances, and determine whether an extended teleworking relationship would be beneficial—applying the same standard to other similarly-situated employees. There are pros and cons to extending telework; yet, any such arrangement should not be indefinite.

Q: Quarles & Brady has recommended that employers implement a vaccination policy regardless of the type of vaccination program they implement. What topics should the policy cover?

A: Every workplace vaccination policy should identify, at minimum, the following: (1) the type of vaccination program implemented, whether mandatory, encouraged, or voluntary; (2) to whom the vaccination program applies (e.g., all employees or select positions, visitors, etc.); (3) required documentation verifying vaccination status; (4) any reimbursement, time off, or incentives for vaccination; (5) PPE and workplace health and safety measures; (6) protocols for COVID-19 exposure post-vaccination; and (7) employee accommodations. In addition, vaccination policies may include information about the vaccine itself and/or resources for obtaining vaccination. For assistance in drafting your company’s COVID-19 vaccination policy, contact your local Quarles & Brady attorney.

Ongoing Monitoring Continues

Both the pandemic and the rollout of COVID-19 vaccinations are dynamic and rapidly evolving situations which implicate federal, state, and local laws, as well as guidance from the CDC and local health departments.

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As a follow-up to our February 17 webinar on COVID vaccinations, please register to join us on April 28th for a webinar update on latest developments and vaccine considerations for employers, as well as other timely management issues during the later stages of the pandemic.

• Otto Immel: (239) 659-5041 / otto.immel@quarles.com
• Lindsey Davis: (414) 277-3073 / lindey.davis@quarles.com
• Kaitlin Phillips: (312) 715-5179 / kaitlin.phillips@quarles.com
• Brenna M. Wildt: (414) 277-5328 / brenna.wildt@quarles.com