Our recent webinar, COVID-19 Vaccination Issues – Latest Developments, explored employer vaccination programs in the latest phase of the vaccine rollout and identified anticipated issues surrounding the return to the workplace. We addressed these topics by summarizing recently-updated administrative guidance and developments across the vaccination landscape, and by walking through practical hypothetical scenarios.
This FAQ update is designed to provide helpful insights to employers navigating their own COVID-19 vaccination programs and implementing strategies to bring employees back to work. Questions from webinar participants have been added to our own list of relevant and frequently asked questions and answers. We also provide an updated “Situation Summary” of new and notable developments in the vaccine rollout.
Updated Situation Summary
- 5/4/2021 - The White House announced its goal of giving 70% of Americans at least one dose of the COVID-19 vaccine by July 4, 2021.
- 5/7/2021 - Pfizer initiated its application for full approval of its COVID-19 vaccine from the U.S. Food and Drug Administration (FDA).
- 5/11/2021 - The FDA expanded emergency use authorization (EUA) of Pfizer’s COVID-19 vaccine for individuals ages 12-15.
- 5/13/2021 - The Centers for Disease Control and Prevention (CDC) updated its guidance for fully vaccinated people, advising that they no longer need to wear a mask or physically distance—except where required by state/local law or other business/workplace guidelines—and can largely refrain from testing following a known exposure to COVID-19.
- 5/15/2021 - Approximately 274 million doses of the COVID-19 vaccines have been administered, more than doubling the 100 million doses administered as of March 19, 2021.
- 5/18/2021 - 37.6% of Americans are fully vaccinated, and over 59% have received at least one vaccine dose, up from 28.9% fully vaccinated and 42.6 % partially vaccinated as of April 26, 2021.
Q. Since the CDC has updated its recommendations for fully vaccinated individuals, what should employers do now?
A. Updated guidance from the CDC provides that—subject to applicable state and local law or business and workplace guidelines—fully vaccinated individuals no longer need to wear a mask or physically distance. In addition, the CDC stated that fully vaccinated individuals no longer need to get tested for COVID-19 following a known exposure, unless they are experiencing COVID-19 symptoms or are residents or employees of a correctional or detention facility or homeless shelter. The Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have both taken notice of this new CDC guidance—the EEOC has announced it is considering the guidance in conjunction with the advice it already issued with respect to COVID-19 policies and anti-discrimination laws, and OSHA has instructed employers to follow the new CDC recommendations for fully vaccinated workers, outside of healthcare and a few other environments, pending updates to its workplace guidance.
Considering the foregoing, and consistent with our discussion during the recent webinar, the answer to many employers’ question “Can I now relax masking and distancing requirements for vaccinated employees?” is “YES”. So long as state or local laws do not require otherwise, employers who wish to relax such requirements should now be planning to ratchet back workplace mask and social distancing mandates. Specifically, employers should complete their plans for implementing necessary procedures and communicating with their employees about their new requirements relating to masking and social distancing. While they do so, employers should make clear to employees that they’re evaluating current administrative guidance, anticipate announcing relaxed rules soon, and encourage employees to become fully vaccinated so that they can take advantage of modified masking and social distancing rules in the workplace.
Employers should adopt procedures by which employees can establish their vaccination status to human resources personnel, and human resources personnel should develop procedures to provide truncated vaccination information to supervisors. For example, human resources might regularly prepare and update an area-by-area list of workers that do not have to wear a mask. Such a list will arm supervisors with the ability to enforce the tailored mask policy, and should eliminate any reason for supervisors to further question employees about why they are unvaccinated (which may constitute a medical examination prohibited under the Americans with Disabilities Act (ADA)). Unlike the ADA and religious accommodation concerns with a mandatory vaccination policy, eligibility for the CDC’s relaxed rules depends only on being fully vaccinated.
In short, the CDC’s updated masking and social distancing guidelines prompt employers to prepare their revised masking and social distancing policies. In doing so, employers should continue to monitor state and local requirements, as well as further updated guidance from the CDC, EEOC, and OSHA (recall that OSHA’s emergency temporary standard aimed to protect workers from COVID-19 is still undergoing White House review).
Q. In addition to asking whether an employee has gotten vaccinated, can an employer ask their employees if they plan to get vaccinated?
A. The EEOC has stated that it is a permissible inquiry for an employer to ask about an employee’s current vaccination status (i.e., “Are you vaccinated?”), as there are many reasons why an employee may not be vaccinated that may or may not be disability-related. Therefore, asking an employee if they have been vaccinated is not a disability-related inquiry. Similarly, asking an employee if they plan to be vaccinated would not be considered a disability-related inquiry, as there are many reasons why an employee may or may not plan to get the COVID-19 vaccine that are unrelated to any disability. Employers should be cautious about asking any subsequent questions that may elicit information about a disability and therefore subject the employer to the pertinent ADA standards (i.e., “Why don’t you plan to get vaccinated?”).
Practical Tip – Employers requiring proof of employees’ vaccination status from a pharmacy or the employees’ personal health care provider should make clear to their employees not to provide any other medical information as part of the proof in order to avoid implicating the ADA.
Q. A sales employee whose workplace has implemented an incentivized vaccination program and is moving toward resuming on-site work has chosen not to get vaccinated based on personal views unrelated to religious beliefs or medical conditions, but has asked to continue working remotely and not interacting with clients in-person because he “is at risk for severe COVID-19.” Is this sales employee entitled to his requested accommodation?
A. The ADA requires employers to provide a reasonable accommodation to employees who have medical conditions that place them at a “higher risk for severe illness” if they contract COVID-19. However, as a rule of thumb, employees do not have a right to the accommodation of their choice.
In this circumstance, the employer should first determine whether the employee indeed has an underlying medical condition that places the employee at higher risk for severe COVID-19. The employer may do so via a tailored medical questionnaire that identifies the already in place office safety protocols and seeks information regarding: (1) the nature of the employee’s medical condition and the risks and restrictions relating to the same, and (2) whether there are any measures the employee or the employer could take that would allow the employee to work in the office without posing a direct threat to the employee’s own health or safety or that of others in the workplace. Notably, one such measure might be that the employee—who has no medical or religious basis for declining vaccination to date—becomes fully vaccinated against COVID-19.
Based on the feedback of the employee’s health care provider, the employer should determine what, if any, reasonable accommodations it could put in place that would allow the employee to continue performing the essential functions of the job without imposing an undue hardship on the employer. This may include requiring the employee to return to the office with additional workplace safety modifications. Alternatively—if the employee’s health care provider indicates that a safe return to the office is not presently possible—this may include considering extended, but not indefinite, teleworking.
Because determinations related to reasonable accommodations under the ADA involve sensitive and fact-specific determinations, employers should consult legal counsel before effecting them.
Q. My company has personnel who cannot do their job remotely. Moreover, when an employee gets sick, it is hugely disruptive to our business operations. Can we require employees to be fully vaccinated?
A. Yes, so long as doing so is not otherwise prohibited under state or local law. EEOC-issued guidance provides that employers may implement a mandatory vaccination policy as long as they comply with federal employment laws that prohibit discrimination on the basis of religion and disability. In other words, employers must reasonably accommodate employees who are not vaccinated due to a genuinely held religious belief or medical condition, so long as doing so would not result in a direct threat to the health or safety of the employee or others or create an undue hardship for the employer. If an employer determines that there is no such reasonable accommodation that may be implemented for an employee who is unvaccinated due to religious belief or disability, then it is lawful for an employer to exclude that person from the workplace.
Q. I have heard my state is considering legislation that would prohibit employer-mandated vaccination. Can my company implement a mandatory vaccination program before such proposed legislation takes effect?
A. Yes. An employer may implement a mandatory vaccination program, so long as there is no state or local law that prohibits such a program at the time it is implemented. And, doing so will allow the employer to maximize workplace vaccination rates.
Because several states—including Illinois, Indiana and Wisconsin—have proposed legislation that would either entirely prohibit or place significant limitations on employer vaccination programs, employers should be prepared to quickly modify or eliminate mandatory vaccination policies if an applicable state law barring them is enacted.
For the most up-to-date information on state and local law prohibiting mandatory vaccination policies, contact your local Quarles & Brady attorney.
Q. Does an employee requesting a medical exemption from a mandatory vaccination policy have to show documentation of their medical condition?
A. An employee requesting a medical exemption is not automatically required to show documentation for the medical condition. However, because an employee seeking an exemption from his or her employer’s mandatory vaccination policy on the basis of a disability is making an accommodation request under the ADA, in most cases employers are permitted to request “reasonable documentation” substantiating that there is a need for accommodation. More specifically, under the ADA, an employer may—but is not required to—ask an employee for “reasonable documentation” regarding their disability when the disability is not obvious. If an employee’s disability or need for an accommodation is not obvious, and reasonable medical documentation is requested but not provided, then the employee is not entitled to an accommodation.
In the context of requests for exemption from a vaccination requirement, this means that an employer is entitled to verify via documentation that the individual has a covered disability which would prohibit the employee from getting vaccinated, and may deny an exemption request in the absence of such reasonable documentation.
Q. Can an employer of a unionized workforce implement a mandatory vaccination program?
A. Employers of unionized workforces that seek to implement mandatory vaccination programs must assess a number of interrelated considerations. Preliminarily, it is likely that such a vaccination program would be considered a mandatory subject of bargaining. Thus, prior to implementing any such program, a unionized employer must determine whether the applicable collective bargaining agreement (CBA) contains any language that allows or prohibits management’s implementation of such a program. If the CBA already allows for implementation of such a program, no further bargaining is necessary. However, if the CBA prohibits such a program, then such a program cannot be implemented absent the consent of the union.
In the unlikely event the CBA contains a provision that would permit the employer to implement a mandatory vaccination program, then the employer may do so without the need for further bargaining. However, given the sensitivity of policies related to COVID-19 and vaccinations in particular, advance notice to the union by the employer of its intent to implement such a policy may be advisable.
If the CBA does not address the implementation of such programs, and the CBA does not contain a clause preventing bargaining during the term of the contract, then the employer should bargain with the union over mandatory employee vaccination in good faith. The employer should not implement the program until either an agreement is reached or the parties reach impasse.
If the relevant CBA does contain a clause prohibiting mid-term bargaining, then the employer likely cannot implement or bargain such a program, except in the unlikely event that the union agrees to make an exception.
Because the collective bargaining obligation and dynamic between management and the union is unique to each workplace, employers should consult legal counsel before attempting to implement mandatory vaccination programs in unionized work environments.