Employers' obligations when implementing mandatory vaccination programmes

To track or not to track: the million-dollar compliance question
Be cautious about employee data provided as proof of vaccination or pre-vaccination screening
Mandatory versus voluntary COVID-19 vaccination programmes
Defining 'reasonable accommodation' and potential Title VII and ADA concerns
Consider application of ERISA
Other benefits considerations involved in vaccination programmes


With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores, among other things:

  • employers' obligations when implementing mandatory vaccination programmes;
  • issues concerning employee data that is provided as proof of vaccination or pre-vaccination screening; and
  • defining 'reasonable accommodation' and potential Americans with Disabilities Act (ADA) concerns.(1)

Employers' obligations when implementing mandatory vaccination programmes

Employers that implement mandatory COVID-19 vaccination programmes should pay close attention to their responsibilities under the following as many of the traditional applications of these laws apply to this type of programme:

  • Title VII of the Civil Rights Act;
  • the ADA;
  • the Genetic Information Non-discrimination Act (GINA);
  • Occupational Safety and Health Administration (OSHA) guidelines; and
  • the Employee Retirement Income Security Act (ERISA).

For example, employees that have specific ADA or Title VII challenges (eg, a sincerely held religious belief, practice or observance or disabilities) that could prevent them from complying with the policy will need to be provided with reasonable accommodations unless this would pose an undue hardship. With the opportunity for employers to request additional supporting information to verify an employee's request under the ADA or Title VII, employers should assess these situations on an individual basis and look to understand various factors when evaluating:

  • the severity of the harm;
  • the likelihood of harm to others; and
  • the imminent consequences of the threat.

To track or not to track: the million-dollar compliance question

To maintain the integrity of a mandatory vaccination programme and ensure compliance within the company, employers should commit to deploying a comprehensive tracking system. The intention behind a mandatory programme is to ensure that the workforce is protected so that companies can resume normal business activities and operations to pre-COVID-19 levels. By having a robust tracking system, employers can stay on top of:

  • the employees who have been vaccinated;
  • the individuals challenging the policy;
  • the professionals who need accommodations; and
  • other unique circumstances.

On the contrary, it is not recommended to implement a tracking system for a voluntary vaccination programme as the ambiguous ask for employees to self-report leaves a lot of unknowns and inconsistencies.

Undoubtedly, there is an administrative burden that accompanies any kind of tracking system; however, the benefits outweigh those concerns and should be considered early on as employers look to deploy a mandatory programme.

Be cautious about employee data provided as proof of vaccination or pre-vaccination screening

Employers will have to carefully manage the information that employees provide to verify their vaccination or as part of a pre-screening vaccination process. Due to strict parameters set by the GINA, the ADA and the Health Insurance Portability and Accountability Act (HIPAA), employers will need to be clear with the information that the company is requesting through targeted forms and other means to ensure that employees are providing only the necessary details that demonstrate compliance with the overall policy. With the ADA, employers must show that pre-screen questions are job-related and consistent with business necessity. Under the GINA, employers cannot enquire about an individual's or family member's genetic information, including:

  • genetic tests;
  • family medical history;
  • requests for, receipts of or participation in clinical research, including genetic services; and
  • genetic information about a foetus carried or an embryo legally held using assisted reproductive technology.

Employers must also be aware of instances where employees inadvertently provide medical information. Depending on the circumstances, such instances may require employers to maintain a separate set of protocols to comply with the HIPAA.

Mandatory versus voluntary COVID-19 vaccination programmes

There are many factors that employers should consider before deciding whether a mandatory vaccination programme is the right path for them to take. The upside of having a vaccination programme is that it can bring a lot of benefits to companies as they look to return to 'normal', including:

  • motivating the workforce;
  • expediting the return of employees to a traditional work setting;
  • relaxing COVID-19-specific policies; and
  • eliminating the health concerns in high-risk environments.

However, there are drawbacks that employers should evaluate before fully committing to this kind of programme, including:

  • required compliance tracking and data management of information provided by employees, including the challenges presented by outsourcing the management of this information;
  • the limited impact on social distancing protocols, as companies will still need to have employees comply with those policies;
  • the increased need to provide special accommodations to address the challenges raised by the ADA, Title VII and OSHA, including the risk of providing an uneven application of accommodations that may lead to discrimination claims; and
  • the potential for workers' compensation claims relating to adverse reactions to the vaccination.

Employers must also be aware of instances where employees inadvertently provide medical information that would be constituted as health data as this will require employers to follow a separate set of protocols to comply with the HIPAA.

For voluntary programmes, there are expected benefits from a self-reporting system, but also drawbacks. Employees will be less likely to raise retaliation claims or other adverse actions, while employers have more flexibility with the types of information that they can solicit through pre-screen questions as a result of ADA and GINA-compliant voluntary wellness programmes. In addition, ADA and Title VII accommodations do not apply as the programme is completely voluntary. Keeping that in mind, a voluntary programme offers far less benefits in terms of the control that employers have to ensure that:

  • their workforce is fully vaccinated;
  • they can open operations where safety concerns exist; and
  • they can pull back on COVID-19 policies such as social distancing.

Defining 'reasonable accommodation' and potential Title VII and ADA concerns

Consider application of ERISA

The application of ERISA will be determined by how involved the employer is in the vaccine programme. Employers opting for an incentive programme which are not offering to pay or provide the vaccine need not create an ERISA plan. However, employers considering sponsoring on-site or near-site vaccine programmes (or using a third party to administer vaccines to employees) will have to be mindful of their ERISA plan. While this should not be difficult for employers, they must ensure that everything is order, including adding the necessary information to the summary plan description and updating the participant count. In addition, while there might be compliance obligations to bear in mind, ERISA pre-emption allows employers to not have to worry about some of the state and local laws.

Other benefits considerations involved in vaccination programmes

If offering an incentive programme, employers must be careful of what is taxable and what is not. Time off is taxable, while gifts such as a water bottle are considered de minimis and are not taxed.

Employers should consider whether this benefit will be offered to all employees or just those under the company health coverage, and whether they will extend the programme to dependants.

The cost of an on-site or near-site programme can become steep. Under the Affordable Care Act, vaccines are considered preventive medicine and group health plans will be responsible for the entire cost of vaccine administration.

Employers should also consider the HIPAA privacy implications involved in vaccine programmes. If providing an on-site vaccination clinic, the HIPAA and state privacy should be top of mind.

Using a third party which will store participants' data will help to insulate employers from the HIPAA.

For further information on this topic please contact Christopher A Braham at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email ([email protected]). Alternatively, please contact Michael J Sheehan, Carole Spink or Judith Wethall at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email ([email protected], [email protected] or [email protected]). The McDermott Will & Emery website can be accessed at


(1) This article is based on a recent webinar, available here.

Philip Shecter, associate, assisted in the preparation of this article.