COVID-19 vaccines and US employers: Understanding options vs obligations

Weighing out the options for COVID-19 vaccines and employer requirements: The what, who and how behind policies in the US. 

Connie Kang

by Connie Kang

The US Food and Drug Administration’s (FDA’s) authorization of COVID-19 vaccines for emergency use brings hope for easing and preventing the spread of the virus. Yet the subsequent pause of the Johnson & Johnson vaccine recommended by the FDA and CDC and continued unsurety about businesses’ roles offer more confusion than clear next steps. So, what is obligatory and what is optional regarding the COVID-19 vaccines and US employers’ duties? 

Mandatory vs. voluntary: COVID-19 vaccination policies

According to the Equal Employment Opportunity Commission (EEOC)’s COVID-19 guidance (updated in December 2020), US employers can mandate COVID-19 vaccines for employees only if exemptions and accommodations are provided to those whose disabilities or religious beliefs prevent them from receiving vaccination. While the Occupational Safety and Health Administration (OSHA) has not spoken on mandatory COVID-19 vaccinations, generally, it allows employers to impose health and safety policies that are job-related and consistent with business necessity. 

The CDC has recently published guidance regarding “Workplace Vaccination Program”, covering whether employermandated COVID-19 vaccination is “a matter of state or other applicable law. Some states are now considering preventing these mandates as a condition for returning to work. Consult with your facilities’ state law as well as other local regulations to determine whether you can require COVID-19 vaccination for your employees. 

Even if state and local laws donprohibit mandating COVID-19 vaccination, employers should still balance the potential risks and benefits in determining whether a mandatory policy is truly necessary. For example, for industries and sectors where social distancing isn’t possible and/or where employees are at higher risk of exposure, mandatory vaccination is more likely to be considered to satisfy the OSHA conditions.  

When to make exceptions for COVID-19 vaccines: Disabilities, “direct threats” & demands of proof

When implementing a mandatory vaccination program, youll also need to accommodate any employees who are unable to receive the vaccination due to disabilities or other medical conditions. Under the Americans with Disabilities Act (ADA), US employers need to engage in an individualized analysis to determine whether such accommodations are necessary. 

In some cases, an unvaccinated employee could pose what the EEOC refers to as a “direct threat” to others at the workplace. To identify this risk and implement practicable accommodations for eliminating it, you can refer to the EEOC’s new guidance. In it, the EEOC provides a 4-factor test helping you to make that determination by evaluating the: 

  • duration of the risk, 
  • nature and severity of the potential harm, 
  • likelihood that the potential harm will occur, and 
  • imminence of the potential harm. 

The EEOC also allows US employers to request proof of vaccination. However, companies should be cautious about asking why an employee has not received a vaccination. This type of question is only allowed if it is deemed “job-related and consistent with business necessity” under ADA and otherwise could be considered as an impermissible inquiry about a person’s disability. 

Administering COVID-19 vaccines: Onsite or off?

After deciding whether to require COVID-19 vaccines for your employees, and for whom they’re required, the question remains how to administer them. CDC’s guidance provides a list of factors that can facilitate onsite administration, including: 

  • a large number of workers on site with predictable schedules; 
  • ability to enroll with your jurisdiction’s immunization program as a vaccination provider, including appropriately training staff, or engaging an enrolled vaccination provider; and 
  • a location with enough space to stand up a vaccination clinic while maintaining social distancing from screening to post-vaccination observation. 

Employers should also consider the administrative and technical obstacles of onsite vaccination. For example, most states require vaccine administrators to register with the state health departments to receive, store, administer, and record vaccination information. 

Moreover, companies who decide to administer the COVID-19 vaccine onsite must be prepared for storage and handling requirements as well as potential medical emergencies due to adverse reactions. Even for large industrial employers with occupational health physicians and nurses, this can be challenging due to the extraordinary refrigeration requirements for the mRNA vaccines (e.g., Pfizer must be kept frozen between -80°C and -60°C (-112°F to -76°F)). 

Alternatively, according to CDC, employers may choose offsite vaccinationsuch as mobile or temporary vaccination clinics, pharmacies, and/or healthcare providers, if the company: 

  • is a small- or medium-sized organization without the resources to host a vaccination clinic, 
  • has mobile worker populations that frequently move from one site to the next, 
  • has workers with highly variable schedules, and/or 
  • has a majority of workers who would prefer vaccination in a community clinic rather than an employer-run clinic. 

Onsite or offsite, vaccine administration will need to follow OSHA’s “Bloodborne Pathogens Standard” to prevent sharp injuries and keep employees safe at vaccination sites. Employees should also wear all necessary PPE for protection from coronavirus, human blood, and other potentially infectious material. 

Post-vaccination & reopening

Due to insufficient evidence about the vaccines prevention of inperson virus transmission as well as the time needed for the immune system to build up protection after vaccination, employees will need to remain cautious. According to both the CDC’s guidance and OSHA’s “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” employers should ensure that vaccinated employees continue following protective measures, such as: 

  • wearing masks, 
  • social distancing, 
  • avoiding crowds and poorly ventilated spaces, and 
  • washing hands often.  

Employers are also encouraged to provide flexible, non-punitive sick leave for employees with symptoms after vaccination. 

Mandating COVID-19 vaccines and employers’ dilemma

As you navigate through the evolving guidelines surrounding the COVID-19 vaccines and US employers’ obligations, keep in mind that deciding to require vaccination in your organization is only the beginning of the process. Companies may mandate COVID-19 vaccines; however, doing so requires making distinctions on multiple levels, including to whom it should apply, how to administer the vaccines and what accommodations are necessary for exempt employees. 

Regardless of whether you choose to deploy a mandatory or voluntary vaccination policyyou should continue to practice preventive measures at your facilities after employees are vaccinated. Use the recommendations outlined above to establish policies that best match your business scenario and help to maintain its optimal safety. 

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