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

Pinpoint the best vaccination policy for your business with this overview of the what, who and how behind US employer requirements and COVID-19 vaccines.

by Connie Kang

The U.S. Food and Drug Administration’s authorization of two COVID-19 vaccines for emergency use brings hope for easing and preventing the spread of the virus. However, this optimism comes with its share of obscurity: what is obligatory and what is optional regarding the COVID-19 vaccines and US employers’ duties?

Employers bear the obligation to provide a safe workplace, free from recognized hazards that could cause death or serious physical harm. Therefore, looking forward to when a sufficient supply of COVID-19 vaccines will be available to the general public, US employers already face the question of exactly how to fulfill those obligations as they relate to COVID-19. To help you determine what’s necessary (and what’s not) in your organizational vaccination policy, here’s a closer look at existing guidelines.

Mandatory vs. voluntary: COVID-19 vaccination policies

According to the Equal Employment Opportunity Commission (EEOC)’s new COVID-19 guidance (updated in December 2020), US employers can mandate COVID-19 vaccines for employees as long as exemptions and accommodations are provided to employees 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, as a general rule, it allows employers to impose health and safety policies that are job-related and consistent with business necessity.

With that said, employers should 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 these OSHA conditions.

The limitation consideration and levels of risk

If you’ve determined that a mandatory vaccination policy is necessary in your organization, you will next need to decide whether to limit those requirements to groups considered high-risk employees. Currently, there is no US federal guidance on classification of sectors or positions regarding risk of virus exposure. However, some states, such as Virginia, provide detailed delineation of which sectors or positions are considered as low, medium, high or very high risk, which can serve as guidelines for determining your required reach of your company’s mandatory vaccination policy.

When to make exceptions: Conditions for disabilities, “direct threats” and demands of proof.

When implementing a mandatory vaccination program, you will 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:

  1. duration of the risk
  2. nature and severity of the potential harm
  3. likelihood that the potential harm will occur.
  4. 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 vaccinations: Relief in relying on third-party providers

After deciding whether to require COVID-19 vaccines for your employees, and for whom they’re required, the question remains how to administer them. While employers can choose to administer vaccinations onsite, they may find this procedure more burdensome than beneficial.

Most states are now requiring vaccine administrators to register with the state health departments to receive, store, administer and record vaccination information – and this registration process is often onerous. Moreover, companies who decide to administer the COVID-19 vaccine onsite must be prepared for potential medical emergencies due to adverse reactions. Even for large industrial employers with occupational health physicians and nurses, onsite vaccine administration can be challenging due to the extraordinary refrigeration requirements for the currently available mRNA vaccines. This is especially the case for those from Pfizer, which must be kept frozen between -80°C and -60°C (-112°F to -76°F).

To avoid these ADA compliance issues and technical obstacles, employers can instead rely on third parties, such as an employee’s health care provider or a pharmacy, to provide COVID-19 vaccination. Alternatively, in some states, employers can coordinate with state health departments as a closed point-of-dispensing site.

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 vaccination policy or a voluntary one, 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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