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This article was originally published by Paychex.
Given the significant impact that COVID-19 has had on many businesses and the people they employ, many employers may be interested in understanding their options for mandating or encouraging employees to receive COVID-19 vaccinations, and any associated obligations.
In fact, according to a recent Paychex Small Business Snap Poll, most business leaders see themselves as having a role in employee vaccination: 75% of small businesses (10-49 employees) and 85% of medium-sized businesses (50-500 employees) plan to motivate their employees to get the COVID-19 vaccine, in large part because they feel responsibility as an employer, and due to the key role the vaccine has on their business viability.*
While employers may be able to develop mandatory vaccination policies that comply with federal requirements, t’s important to consider whether you can successfully encourage employees to be vaccinated, and whether you can lawfully accommodate those who might be unable to receive the vaccine.
Can I require my employees to be vaccinated against COVID-19?
The Americans with Disabilities Act (ADA) allows employers to establish a qualification standard that requests that “an individual not pose a direct threat to the health or safety of others in the workplace.” Therefore, according to the current guidance from the Equal Employment Opportunity Commission (EEOC), it does not violate federal law for employers to require employees to get a COVID-19 vaccine, as the virus presents a “direct threat.”
However, an employee could have a medical condition, perhaps including pregnancy, that would be considered a disability under the ADA, or a covered condition under state or local laws, that may impact them from receiving the COVID-19 vaccine. In other cases, an employee may have a sincerely held religious belief that prevents them from being vaccinated. In both circumstances, such employees may be eligible for a reasonable accommodation to be able to perform their jobs.
It’s important to note that employers who request or require their employees to be vaccinated may also need to compensate non-exempt employees for their time spent obtaining the vaccination, including traveling to and from the vaccinate site.
If I implement a vaccine policy, how can I encourage my employees to be vaccinated against COVID-19?
Policies that encourage vaccination can increase workplace morale and help avoid the pitfalls that can come with a mandatory policy. Employers can encourage employees to be vaccinated by helping to reduce potential barriers to receiving the vaccine and creating incentives. Incentive examples include:
- A set amount of paid time off for employees who receive the COVID-19 vaccine.
- Additional paid leave to employees who experience side effects from the vaccine (such as fever, chills, tiredness, and headache).
- Flexible scheduling options so that employees are able to receive both doses of the vaccine as it becomes available.
- A one-time incentive payment to employees who can prove that they are fully vaccinated.
According to the Paychex Snap Poll, 79% of SMBs (10-500 employees) plan to encourage employees to get the vaccine. Thirty-one percent say they will provide paid leave for employees who get vaccinated during work hours, while nearly one-fourth say they will provide a financial incentive. Twenty percent plan to incentivize employees by subsidizing costs associated with getting the vaccine, including transportation, childcare or medical costs*.
It’s important to note that, depending on the type of incentive and the type of information that employers require from their employees, some incentive programs may fall under the rules governing employer wellness programs. Therefore, you are encouraged to consult with your legal counsel before implementing any incentive program, to ensure compliance with applicable federal, state and local laws.
What can I do if an employee refuses or is unable to be vaccinated?
As mentioned, if an employee cannot receive the COVID-19 vaccine due to a medical condition, or due to a sincerely held religious belief, practice, or observance, the employer must determine whether the unvaccinated employee would pose a direct threat to themselves or others in workplace, and whether they can be reasonably accommodated to enable them to continue performing their job. Reasonable accommodations may include use of additional protective equipment, a leave of absence, or working from home.
For example, unvaccinated employees working in health care or residential care settings may pose a significant risk to others within their facility, and the risks associated with the type of work that they are performing. Whether protective equipment or other measures could sufficiently reduce their risk of transmission, therefore, must be evaluated.
If I implement a mandatory vaccine policy, what can I do if I’m unable to accommodate an unvaccinated employee?
Before taking any action against an employee who refuses or is unable to be vaccinated due to a disability or medical condition (including pregnancy) or a religious belief — and who cannot be reasonable accommodated — be sure to consult with your legal counsel to determine if the employee has any other leave of absence entitlements available under federal, state or local law, as well as next steps.
Can I request a copy of my employee’s COVID-19 Vaccination Record Card?
Employers seeking proof of vaccination must be careful not to request medical information from their employees. Although the Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Record Card includes only limited information, such as the date of the vaccine dose, the type of vaccine, and where the vaccine was received, which is not considered medical information under current guidance from the EEOC, employers should review state and local requirements before requiring any type of proof that an employee has received the vaccine.
Employers should still maintain strict confidentiality regarding any proof of vaccination that is provided, and treat the information like any other medical information collected or obtained from their employees. Any copies of the card should be secured in a separate location from the employee’s personnel file and should not be shared with anyone who does not have a need to know.
If some or all of my workforce is vaccinated, will they still need to wear masks or face coverings and practice social distancing?
Currently, the CDC recommends that people still wear masks and avoid close contact with others even if they have been fully vaccinated. The Occupational Safety and Health Administration (OSHA) also recommends that employers encourage the use of face coverings. In addition, many states and localities are mandating face coverings, so it’s important that employers review their obligations under state and local laws in order to comply with any restrictions that may apply.
Will my employees be charged a fee to receive the vaccine?
According to the CDC, vaccine doses purchased with U.S. taxpayer dollars will be available without cost to individuals, but vaccination providers can charge a fee for administrating it. These administration fees should be covered by an employee’s health insurance or, in the case of uninsured patients, the vaccine provider can seek reimbursement from the Health Resources and Services Administration’s (HRSA) Provider Relief Fund.
If you’re an employer interested in reimbursing employees for any vaccine administration costs, be sure to consult with your legal counsel to assess potential risks. For example, you may be required to comply with the same requirements as employer sponsored health insurance plans.
For more information about laws, regulations and guidelines surrounding COVID-19, as well as how you can support, protect, and inform your staff about what’s ahead as you acclimate to a new normal, be sure to visit Paychex's dedicated COVID-19 Help Center.
* Paychex conducted an online survey of 300 principals of U.S. companies with 2 to 500 employees. The survey was fielded January 27-February 2, 2021.
* This content is for educational purposes only, is not intended to provide specific legal advice, and should not be used as a substitute for the legal advice of a qualified attorney or other professional. The information may not reflect the most current legal developments, may be changed without notice and is not guaranteed to be complete, correct, or up-to-date.