Just the FAQs (Frequently Asked Questions) - COVID-19 Vaccines in the Workplace
(For a printable version of this Article, click here: FAQ - Vaccinations in the Workplace)
Millions of employees have received vaccinations in the United States and federal and state authorities are easing COVID-19 restrictions. As a result of this expected shift in COVID-19 management, businesses have begun looking at normalizing workplace environments by implementing elective and mandatory vaccination processes.
OlenderFeldman LLP has prepared this FAQ to further explain the positive and negative aspects of mandating vaccines in the workplace.
Q. Can Employers Mandate Employees to Receive the COVID-19 Vaccine Before Allowing them to Physically Return to the Workplace?
A. Yes. The United States Equal Employment Opportunity Commission (“EEOC”) and the New Jersey Department of Health (“NJDOH”) have said that employers can require employees to receive the COVID-19 vaccine before allowing them to return to the workplace, with the following exceptions:
- Employees with a medical disability that would prevent them from getting the vaccine;
- Employees whose doctors have advised them not to get the vaccine while pregnant or breastfeeding;
- Employees with sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.
Q. Should Employers Implement a Mandatory Vaccination Program?
A. Yes, although timing should vary based on circumstances. Vaccinations are currently the most effective method presently available to protect against the occurrence and/or adverse conditions of COVID-19. By extension, they provide the most effective means for employers to protect the health, safety and welfare of their employees as well as those individuals or businesses interacting with employees. Indeed, most employees will look to their employers to mandate such vaccination programs as a matter of self-interest (i.e. protecting them and their families from exposure to the virus). We anticipate that most employees will make the decision independent of any mandate to obtain vaccinations. The question for businesses is therefore not whether to implement such a program, but one of timing once the vaccination is universally available to all current and potential employees. Based upon available information, we anticipate that sufficient vaccination supplies will be available by the end of Summer, 2021 to accomplish that.
Based upon the best available guidance, employers should consider requiring all employees who do not have a valid basis to decline vaccinations at this time (see below) to vaccinate by Fall, 2021, which will likely coincide with businesses seeking to return to office environments requiring their employees to return to work.
Employers will need to tailor their mandatory vaccination programs to the conditions of the workplace environment both with respect to timing and application. Once an outer date is established, employers should consider incentivizing employees to vaccinate in order to expedite the process. There are a number of ways of doing so through educating employees on the benefits of vaccinations. The EEOC is in the process of preparing guidance as to direct employee incentives for vaccinations such as paid time off, safety awards and so forth, but we caution against use of any direct cash incentives until such time as the EEOC has addressed the matter.
Q. What Are an Employer’s Obligations if a Vaccine Exception Applies?
A. If an employee has a disability that precludes them from getting a COVID-19 vaccine, has been specifically advised by their doctor not to get the COVID-19 vaccine while pregnant or breastfeeding, or has a sincerely held religious belief, practice or observance that precludes them from getting a COVID-19 vaccine, employers must provide a reasonable accommodation from their mandatory vaccine policy, unless doing so would impose an undue burden on their operations.
Upon learning of the possible need for a reasonable accommodation, employers should engage in the communication process required in cases involving the Americans with Disabilities Act (“ADA”) in which the employee, his or her health care provider and religious institution, and the employer share information about the nature of the disability or religious belief and the limitations on receiving an employer-required vaccination. This process is referred to as the interactive process and involves a good-faith effort by the employer and the employee to discuss the employee's specific circumstances. The purpose of this discussion is to determine what (if any) accommodations may be needed.
The interactive process involves a review of the accommodation request from the employee. Neither the ADA nor Title VII requires the request to be put in writing; however, having documentation of the request is a good practice.
For ADA accommodations, the employee should be asked to provide appropriate documentation from his or her health care provider regarding the nature of any impairment(s), the duration of the need for accommodation and the extent to which the impairment(s) conflict with the employer's vaccination requirement.
In the event the employer needs to consult with the employee’s health care provider, the employer must obtain a written medical release or permission from the employee. The employee’s health care provider may not disclose information or answer questions about the employee's disability without his or her permission.
A reasonable accommodation may include allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public. It may also include providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.
For religious accommodations, the employee should be asked to provide an explanation of his or her sincerely held religious beliefs and, if necessary, appropriate documentation from his or her religious leader or institution regarding the religious belief that conflicts with the employer’s vaccination requirement.
If a reasonable accommodation cannot be utilized, an employer may exclude the employee from physically entering the workplace. However, employers must explore all reasonable options (such as maintaining remote work conditions) before taking any adverse job action against the employee.
Q. Can the Employer Request Proof of Vaccination?
A. Yes. Employers can require proof of vaccination. However, employers should be careful to avoid probing questions that may elicit information about an employee’s disability and trigger the ADA and its state law equivalent, such as asking why an employee did not receive a vaccination.
If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, an employer generally may not question the sincerity of their religious beliefs, practices, or observance, unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
Q. Must Employers Continue to Maintain Other Infection Control Measures Even After Employees Are Vaccinated?
A. Yes. Employers must continue to follow and enforce state laws, executive orders, guidance and directives regarding social distancing and face coverings in the workplace, even after its employees are vaccinated. Although the CDC has indicated that vaccinated people can resume activities they did prior to the pandemic, employers must still follow state and local guidelines with respect to face coverings in the workplace. Currently, New Jersey continues to mandate masks in the workplace even for vaccinated employees. While we expect this mandate to be lifted in the coming months (indeed, we note that Governor Murphy announced this past Friday that the emergency orders containing business restrictions will be ending soon), businesses in New Jersey should continue to follow state guidelines to require masks in the workplace until further notice.
The status of COVID-19 vaccines and related guidance is constantly evolving. It is essential that employers fully assess all the benefits, risks, and potential liabilities of requiring or encouraging employee vaccination for COVID-19, considering updated guidance from public health authorities, availability of the vaccine, and the nature of employees’ job duties.
Employers should discuss mandatory vaccines and personnel policies related to COVID-19 with experienced legal professionals to ensure compliance with all federal and state laws, regulations and Executive Orders. OlenderFeldman, LLP attorneys are available to provide guidance on these issues and other challenges facing employers during these unprecedented times.
The Employment Practices and Litigation Group is in the process of developing vaccination policies for near term implementation. For more information or guidance regarding employment matters, compulsory vaccination policies, and how to implement nondiscriminatory practices please contact Howard Matalon () or Alex Umansky () in the Employment Practices and Employment Litigation Group. For a printable version of this Article, click here: FAQ - Vaccinations in the Workplace
