What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at mrengel@lerchearly.com or Michael at mjneary@lerchearly.com.

Vaccines Eliminate Need To Quarantine For Period Of Time According To CDC

Michael NearyMichael Neary

The big news of the week for employers did not come out of the Department of Labor or Equal Employment Opportunity Commission. Instead, it came out of the Centers for Disease Control and Prevention (“CDC”). After much discussion and speculation in the public health community, CDC announced that asymptomatic fully vaccinated individuals need not quarantine after a subsequent COVID-19 exposure within three months of full vaccination. The CDC guidance is available here.

We all hope the time after full vaccination where an individual need not quarantine following a COVID-19 exposure will extend further if the protection from the vaccine is shown to last longer than three months.

The ramifications of this decision for employers cannot be overstated. Had CDC come down the other way, there was literally no end in sight to the social distancing measures employers have been diligently following in the workplace since the pandemic started. Part of the reason employers follow social distancing is to minimize spread. But another big reason for social distancing within workplaces is to avoid quarantining large segments of employees if one of them contracts COVID. That is because most people within six feet of a confirmed COVID positive individual for 15 minutes or more are subject to a government-mandated quarantine. CDC’s new guidance means that a vaccinated employee can continue to work even if there is a close contact exposure. Given the CDC guidance, the risk of having to quarantine large groups of employees for an exposure will fall as more of the workforce is vaccinated.

Employers should update their own quarantine policies to align with CDC’s updated guidance. And employers should institute robust programs educating employees about the COVID-19 vaccine and encouraging employees to get the vaccine when it is available to increase the number of employees vaccinated. Doing so not only protects your workforce, it also, given the new CDC guidance, minimizes the disruption a confirmed COVID positive case will have on your day-to-day operations.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.

Virginia Is First Again: COVID-19 Workplace Safety Rule Becomes Permanent

Josh SchmandJosh Schmand

This past summer, Virginia became the first state to pass mandatory workplace standards for employers to control, prevent, and mitigate the spread of COVID-19 to and among employees and employers. Those emergency workplace safety standards were temporary and were set to expire later this month, on January 26, 2021. With the expiration date fast approaching, on January 13, 2021, the Virginia Safety and Health Codes Board enacted a new rule, effective January 27, 2021, extending the protections permanently. This new permanent rule, like the temporary emergency one, is the first of its kind in the country.

The requirements in the new permanent rule are mostly the same as before, and you can read more about those safety standards for different jobs (which are based on risk level of exposure), physical distancing mandates, reporting obligations, return to work procedures, training requirements, infectious disease preparedness and response plans, and penalties here and here. Two key changes in the new rule that are worth highlighting deal with employer reporting obligations and return to work procedures:

  • For reporting, previously, the emergency temporary rule required employers to contact the Virginia Department of Health within 24 hours of the discovery of a positive case of COVID-19. In the new permanent rule, the notification requirement was changed so that now employers only need to contact the Virginia Department of Health when their worksite has had two or more confirmed cases of COVID-19 of their own employees present at the place of employment within a 14-day period who have tested positive for COVID-19 during that period.
  • For returning to work, previously, the emergency temporary rule allowed for employees who were known or suspected to be infected with COVID-19 to return to work after 10 days from when the symptoms first appeared or after they received two consecutive negative tests. In the new permanent rule, the testing based strategy for returning to work was eliminated, and only the symptoms based strategy remained. Specifically, symptomatic employees known or suspected to be infected with COVID-19 cannot return to work until the following three conditions have been met: (1) being fever-free (less than 100.0° F) for at least 24 hours, without the use of fever-reducing medications; (2) improvement of respiratory symptoms, such as cough and shortness of breath; and (3) 10 days have passed since the symptoms first appeared. And, employees known to be infected with COVID-19 who never develop signs or symptoms are excluded from returning to work until 10 days after the date of their first positive RT-PCR test.

Despite significant opposition to the new permanent rule, ultimately the Virginia Safety and Health Codes Board determined that the continuation of the workplace safety standards were still needed to prevent further COVID-19 outbreaks, including among workers who will choose not to be vaccinated once they are eligible. A discussion on employers considering mandatory COVID-19 vaccine policies can be found here.

While the new Rule is “permanent,” within 14 days after Governor Ralph Northam declares an end to the Commonwealth’s COVID-19 State of Emergency, the Virginia Safety and Health Codes Board will have to notice a meeting (not actually have the meeting) to determine whether there is a continued need for the workplace safety standards.

Since Virginia’s workplace safety standards are not going anywhere soon, employers who have not already done so need to develop policies and procedures for employees to report COVID-19 symptoms and subsequently return to work, as well as implement training presentations and written infectious disease preparedness and response plan. And for those employers who previously brought their policies, practices, and procedures into compliance with the emergency temporary requirements, they now have to review and revise them to ensure compliance with the new rule.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

EEOC Issues Guidance For Employers Considering Mandatory COVID-19 Vaccine Policies

Michael NearyMichael Neary

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to address how a COVID-19 vaccine interacts with the equal employment opportunity laws enforced by EEOC. We are likely months away from pharmaceutical companies making the vaccine generally available to the public. But the EEOC guidance is a good resource for employers thinking through whether to institute a mandatory COVID-19 vaccine policy when that day comes.

EEOC Provides a Framework for Mandatory Vaccine Programs

There are three key takeaways from the guidance. First, a policy mandating that employees receive the COVID-19 vaccine is possible provided disability and religious accommodation requests are carefully evaluated. Second, the pre-screening questions that must be asked before a vaccine is administered will likely compel many employers considering a mandatory program to institute a voluntary one instead or to require employees to receive the vaccine elsewhere. Finally, the COVID-19 situation in the country may change dramatically by the time a vaccine is widely available, which could substantially alter EEOC’s guidance. Employers should consider the guidance as they plan but continue to monitor the issue before finalizing any vaccine policies.

EEOC Answers Common Questions Employers Are Asking About Whether To Mandate A Vaccine

The updated EEOC guidance answers a series of questions related to how a mandatory vaccine policy interacts with equal employment opportunity laws. Below is a summary of the questions and answers provided by EEOC.

  • Is an employer administering a COVID-19 vaccine, directly or through a vendor hired by the employer, performing a medical examination under the Americans with Disabilities Act (“ADA”)?
    • Answer: No, with a catch. A medical examination under the ADA is a “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” While administering the vaccine is not a medical test, pre-screening questions would likely uncover underlying physical impairments and constitute a medical examination under the ADA. Under the ADA, employers can perform medical examinations only if they are “job-related and consistent with business necessity.” To meet this standard, employers would need a reasonable basis, based on objective evidence, to conclude an employee that does not receive the vaccine because of a refusal to answer the pre-screening questions poses a direct threat to the health or safety of the employee or others. COVID-19 conditions on the ground at the time of the mandatory program would dictate whether an employer could meet this standard.
    • The EEOC guidance identifies two ways around this issue. First, an employer could make the program voluntary instead of mandatory. The pre-screening questions do not need to satisfy the job-related and consistent with business necessity standard if the vaccine program is truly voluntary. Second, an employer could mandate employees receive the vaccine from third parties not connected to the employer. Under such a framework, since the third party would ask the pre-screening questions and not the employer, the employer need not satisfy the job-related and consistent with business necessity standard of the ADA. An employer may require an employee to provide proof of having received the vaccine without implicating the ADA so long as the employer makes clear the proof should not disclose underlying physical or mental impairments.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a disability?
    • Answer: The employer must perform an individualized assessment under the ADA to determine whether the unvaccinated employee poses a direct threat to the workplace because of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In analyzing this question, four factors should be considered: (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. Assuming a direct threat is found, the employer could only exclude the employee if “there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” If an employer finds that there is no way to provide a reasonable accommodation, the employer can bar the employee from the workplace but cannot necessarily terminate. Before terminating, the employer would need to determine whether other accommodations are available. Potential accommodations to consider are remote work, paid leave, or an unpaid leave of absence.
  • If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a sincerely held religious belief?
    • Answer: The employer should assume the religious belief is sincerely held and provide a reasonable accommodation to its mandatory vaccine program for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. The undue hardship analysis under Title VII asks whether the accommodation has more than a de minimis cost or burden on the employer. In rare circumstances, an employer having an objective basis to question the nature of the religious belief or the employee’s sincerity in that belief can ask for further information. If the employer cannot provide an accommodation because of undue burden, it can bar the employee from the workplace, but must consider whether alternative accommodations would allow the employee to remain employed without entering the workplace.
  • Is the Genetic Information Nondiscrimination Act (“GINA”) implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
    • Answer: No, with a catch. Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquiring genetic information except in six narrow circumstances, or (3) disclosing genetic information except in six narrow circumstances. Administering the vaccine or requiring proof that an employee received one does not implicate GINA because neither involves “the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information as defined by the statute.”
    • The pre-screening questions, however, may implicate GINA. The pre-screening questions for a publicly available COVID-19 vaccine are not clear. If those questions ask for any of the following they would implicate GINA:
      • Information about an individual’s genetic tests;
      • Information about the genetic tests of a family member;
      • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
      • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
      • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.
    • If the pre-screening questions ask for this information, EEOC advises it would be wise for employers implementing a mandatory program not to administer the vaccine directly or through a third-party vendor but to require employers to obtain the vaccine elsewhere. When asking for proof of vaccination, the employer should make clear employees are not to provide GINA related information. Such a warning protects an employer from liability if the employee provides GINA protected information along with any proof of vaccine receipt.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.