The following article was first posted on the News & Insights section of Shipman & Goodwin's website. It is reposted here with permission.
With vaccination rates in Connecticut and New England continuing to accelerate, manufacturers now need to consider the implications that vaccinations will have on their workplaces.
Indeed, on April 1, 2021, every individual over 16 years of age in Connecticut became eligible for a COVID-19 vaccine. While not everyone is going to receive a shot in the first two weeks, it is expected that as the month of April continues, we may start to see supply outstrip demand.
For manufacturers, this should bring some questions and answers into focus. We recently did a webinar on the subject; here is our take on some frequently asked questions.
Q: Can Employers Mandate the Vaccine as a Condition of Employment?
A: Yes, employers can mandate the COVID-19 vaccine per EEOC guidance. However, there are still outstanding questions as to whether employers can do so right now because the vaccine was approved by the Food and Drug Administration through emergency use authorization.
Most employers are not yet mandating the vaccine and, as we discussed at the webinar, the safest course right now is to strongly encourage employees to get vaccinated. This may change as the vaccines receive full approval.
Indeed, for international travel, for example, vaccines may be mandatory; if that continues for domestic travel, employers will be quick to start mandating vaccines.
Q: If Employers Mandate Vaccinations, What Accommodations Need to Be Provided?
A: If employers mandate vaccinations, employers must provide reasonable accommodations under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.
If an employee refuses to get a vaccine, consider whether the employee has a qualified disability, whether the employee has a sincerely held religious belief, and whether the employee’s refusal to vaccinate poses a direct threat to the workplace.
To evaluate whether an employee’s refusal to vaccinate may create a direct threat, employers should look at: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
Before terminating an employee for refusing to vaccinate, also make sure to engage in the interactive process to determine whether a reasonable accommodation can be provided (such as continuing remote work, additional PPE, etc.), and does not present an undue hardship.
Q: Must Employers Provide Paid Time Off to Employees for the Purpose of Getting Vaccines?
A: If vaccination is mandatory, then yes. If vaccination is voluntary, then no.
However, providing PTO for vaccination may be beneficial for an employer. It may encourage employees to get vaccinated, and it demonstrates that the employer cares about a safe workplace for employees.
In addition, vaccination can be easily scheduled ahead of time. Some states, like New York, are mandating paid time off for vaccines, so be mindful of the changing guidance here.
Employers may also decide to provide other incentives that encourage employees to get vaccinated: covering the costs of vaccination (if any), additional pay, or a cash incentive.
However, tread cautiously—providing incentives for vaccination may leave employers open to ADA compliance issues, as those who are unable to get vaccinated, either due to a disability or sincerely held religious belief, do not receive the same benefits.
Q: Can Employers Require Proof of Vaccination from Employees?
A: Yes, an employer may request proof of vaccination from employees. However, employers must be sure not to elicit medical information about a disability and must keep all employee medical information confidential.
Q: What If an Employer Does Not Mandate Vaccination?
A: If an employer does not mandate vaccination, then the employer should keep doing what it is doing: taking precautions such as mask-wearing, social distancing, isolating when an individual is exposed to COVID-19, and remote work, where feasible. Indeed, these are good practices even in a vaccinated workplace.
We are in a challenging phase of the pandemic. Vaccines are here, but not yet widespread, and rates of infection in the tristate area are among the highest in the nation. Continued vigilance on infection control practices is strongly advised.
Keegan Drenosky is an associate in the Stamford office of Shipman & Goodwin. She practices in the area of labor and employment law and business litigation.
Sheridan King is an associate in the Hartford office of Shipman & Goodwin. Her practice is dedicated to identifying, evaluating, and mitigating the array of legal and compliance risks that employers face.
Daniel Schwartz is a partner in the Hartford office of Shipman & Goodwin and has decades of experience solving complex employment law problems for companies.