Joseph K. Mulherin Carole A. Spink Kathleen M. Quinn Troy M. Van Dongen June 9 2021 COVID-19 vaccine – Q&A McDermott Will & Emery | Employment & Immigration - USA Joseph K. Mulherin, Carole A. Spink, Kathleen M. Quinn, Troy M. Van Dongen Employment & Immigration QuestionsThis article answers employers' questions on the COVID-19 vaccine.(1)QuestionsWhere do mandatory vaccination workplace policies stand in light of (yet) undetermined widespread confirmation of the efficacy and effectiveness of the current COVID-19 vaccines?The law is no different for the COVID-19 vaccine as it was for the H1N1 vaccine. Notwithstanding skeptics, it is permissible to mandate the vaccine, subject to Title VII of the Civil Rights Act (religious accommodation) and Americans with Disabilities Act (ADA) (disability accommodation) issues and parallel state counterparts (for further details please see "COVID-19 vaccine: what can employers require?"). As a practical matter, until the vaccine is readily available to a workforce, it does not make sense to make it mandatory. Moreover, because of the wide range of views (both scientific and unscientific) as to the efficacy and effectiveness of the COVID-19 vaccines, many employers are opting and will continue to opt for voluntary programmes. As time passes, that information and those views may evolve.Can employers mandate some employees to get the vaccine and not others (eg, union versus non-union administrative employees)?Having different rules for union versus non-union employees does not violate the National Labour Relations Act, so long as the different treatment isn't retaliatory or motivated by anti-union animus.Can employees refuse to return to the workplace indefinitely without a need or request an accommodation given that they have been able to successfully complete their job requirements remotely since the start of the COVID-19 pandemic? Under what circumstances could an employer refuse that request?The answer to this question will turn on whether working in the office is an essential function of the job. If yes, then the employee cannot indefinitely work remotely. However, proving that working in the office is an essential function of the job is going to be hard for employers if the employee has spent the past nine months performing their job duties well remotely.EEOC guidance seems to suggest that not all workplaces would be viewed the same under the individualised enquiry framework (eg, a meatpacking versus office setting might be viewed differently in terms of mandatory vaccinations). Is this correct?According to the Equal Employment Opportunity Commission (EEOC) guidance, in the context of a mandatory vaccination programme, employers should conduct an individualised assessment in determining whether an unvaccinated employee would pose a direct threat at the worksite (eg, would expose others to the virus at the worksite). Factors such as the type of workplace, the prevalence in the workplace of employees who have already received a COVID-19 vaccination and the amount of contact that the unvaccinated employee has with others whose vaccination status could be unknown may affect the undue hardship consideration. Employers should therefore consider these factors when engaging in the interactive process to identify workplace accommodation options that do not constitute an undue hardship.What are the implications if a programme is voluntary, but the employer allows for paid time off to get the vaccine from an unrelated third party and agrees to reimburse any out-of-pocket costs (eg, admin fees)? Are these incentives an Employee Retirement Income Security Act or federal government concern?Admin fees may not be charged, so vaccines must be provided at no cost to individuals – whether through a group health plan, Medicare or the Health Insurance Marketplace (the Exchange). Therefore, this approach will not create an Employee Retirement Income Security Act plan.If an employer provides in-person job safety training, does it have any jurisdiction to require its students (who are all adults) to be vaccinated before they enter its premises?As far as is known, no current guidance relates to requiring proof of vaccinations from customers. Current EEOC guidance regarding COVID-19 vaccinations focuses on Title I of the ADA, which governs employment relationships. If a company is a public accommodation, Title III of the ADA would apply. The EEOC will likely issue Title III guidance as the vaccine becomes more widely available to the US population.How should employers deal with employee anti-vaccination advocacy on the job, particularly where an employee disseminates misinformation?Because purely political objections to a vaccination programme are not protected under federal law, an employer is under no obligation to exempt an employee from taking a vaccine simply because the employee is an 'anti-vaxxer'. Moreover, an employer is generally allowed to limit anti-vaccination misinformation disseminated by an employee and should do so consistent with its discipline policies. However, some states (eg, California) prohibit employers from taking actions that tend to control or direct their employees' political activities or affiliations. Therefore, an employer should be careful to communicate to an employee engaging in anti-vaccination advocacy that they are free to do so outside the workplace.Can employers create a hybrid approach where the programme is voluntary, but if employees choose not to get vaccinated, they must work remotely from home?Under current guidance, an employer can implement a hybrid approach if implementing a voluntary vaccine programme but requiring employees who are not vaccinated to continue to work remotely.Can employers advertise that all employees have been vaccinated or would they risk claims from employees that their personal health information has been disclosed?Employers should be careful not to disclose employees' immunisation histories as those may be protected from disclosure under state statutory or common law. To minimise the risk of potential claims, employers should consider using broad, general language when 'advertising' their mandatory or voluntary vaccination programmes (eg, "to ensure a safe environment for employees and customers, the Company has implemented a vaccination program for its employees").Will having a third party administer the test on employer property subject the employer to any additional HIPAA regulations? Can employers simply ask whether an employee has been vaccinated?Employers may simply ask about vaccination status – nothing more. This will not implicate Health Insurance Portability and Accountability Act (HIPAA) privacy. However, if the employer administers the vaccine, there will likely be a questionnaire (eg, comorbidity factors), which would implicate HIPAA privacy.If an employer vaccine programme is voluntary, can an employee refuse to return to the workplace because they are uncomfortable working among employees who may not be vaccinated?While general concerns that other employees are not vaccinated may not be protected under the ADA or Title VII, employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them, such as continuing to work remotely. Employers should keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations. In addition, employers should be mindful that if employees come together to protect or refuse to return to work, their concerned efforts could be protected under the National Labour Relations Act.What sort of governance and protocols would be necessary when reviewing religious exemption requests?An employer should engage in the interactive process as it would with any other request for religious accommodation. Generally, an employer should assume that an employee's request for a religious exemption is based on a sincerely held religious belief, practice or observance given the broad definition of religion under EEOC guidance. However, if the employer has an objective basis for questioning the sincerity of the particular belief or its religious nature, it may seek additional supporting information from the employee. The employer should then access whether providing a religious exemption would pose an undue hardship on the employer.Under a mandatory vaccine programme (or, likewise, a voluntary programme), is there an obligation (or a business reason) to consider requiring a COVID-19 test before coming back to work?There is no legal obligation that employers require COVID-19 testing as part of a vaccine programme. However, employers may have separate obligations under state or local regulations, orders and ordinances to require COVID-19 testing before employees may return to work.What are the potential workers' compensation claims relating to possible adverse reactions to a vaccine? Should employers mandate vaccinations? Are employers truly responsible?If an employer implements a mandatory vaccine programme, the vaccination is considered work related. Under most state laws, an adverse reaction to a vaccine would fall under workers' compensation. Employers should check their workers' compensation policies to determine whether injuries and illnesses from mandated vaccines are covered.Does it matter whether an employer has different kinds of employee (eg, back office versus customer facing) with different vaccination requirements or incentives?Employers may consider whether to implement different vaccination policies with respect to employees in different roles (eg, those who directly interact with other employees or the public versus those who do not). However, employers should ensure that they are not treating (or appear to be treating) employees differently based on a protected class.For further information on this topic please contact Joseph K Mulherin at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email ([email protected]). Alternatively, please contact Carole Spink at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email ([email protected]), Kathleen M Quinn at McDermott Will & Emery's New York office by telephone (+1 212 547 5400) or email ([email protected]) or Troy Van Dongen at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email ([email protected]). The McDermott Will & Emery website can be accessed at www.mwe.com.Endnotes(1) This article is based on a COVID-19 webinar series on returning to work. Further information on the COVID-19 vaccine is available here, and further information on returning to work is available here.