AlphaStaff’s COVID-19 Vaccine FAQ contains commonly asked questions to help employers understand current rules, regulations, and guidance related to COVID-19 vaccination and testing policies. Please read our list of frequently asked questions and Contact Us if you have any questions.

 

1. Can an employer mandate vaccination in the workplace?

The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that an employer can mandate that employees be vaccinated; however, this requirement is “subject to reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.”  As such, reasonable accommodations must be made for employees who cannot obtain the vaccine because of a medical condition or a sincerely held religious belief so long as the accommodation does not create an undue hardship for the employer.

If an employee requests an accommodation under either of these circumstances, the employer must initiate an individualized, interactive process to determine if a reasonable accommodation can be made without any undue hardship to the employer.

 

2. How does President Biden’s Path Out of the Pandemic impact employers?

On September 9, 2021, President Biden issued a COVID-19 action plan referred to as The Path Out of the Pandemic (Plan).  The Plan includes many components, including directives to certain federal agencies.

One important element impacting private employers is the President’s directive to the Occupational Safety and Health Administration (OSHA) to draft an Emergency Temporary Standard (ETS) establishing a rule requiring all private employers with 100 or more employees to ensure their workforce is vaccinated or require unvaccinated employees to obtain weekly COVID testing.  The extent of the employer impact is unclear, pending OSHA’s drafting and publishing of the ETS, which is expected in the coming weeks.  However, if an employer falls into the 100-employee threshold, immediately enacting an action plan is imperative as there may only be a short window to comply once the ETS is issued. Once effective, covered employers may be subject to a penalty of up to $14,000 per violation.

Another component of the Plan is an Executive Order directing the Safer Federal Workforce Task Force (Taskforce) to issue “workplace safety” guidance to include a vaccine mandate for federal employees and federal contractors.  On August 10, 2021, the federal government enacted a policy requiring contractors onsite at federal facilities to be vaccinated or tested regularly. On September 27, 2021, the Taskforce issued guidance extending the scope of the vaccine mandate to offsite contractors. Employees of covered federal contractors have until December 8, 2021, to be fully vaccinated, absent a disability or religious accommodation (the second of a two-dose regimen taking place no later than November 24, 2021). The Taskforce’s guidance also requires masks and physical distancing and that the contractor designates one or more COVID-19 workplace safety coordinator(s).  For more information about the Taskforce’s guidance related to federal contractors, please review this article published by our partners at Fisher Phillips.  We suspect the Taskforce will release additional guidelines in the coming weeks as federal contractors gear up for compliance with the December 8, 2021, deadline.

 

3. Are healthcare providers treated differently regarding vaccine mandates?

President Biden stated that the Plan will impact certain healthcare providers. Specifically, Medicare- and Medicaid-certified facilities will be required to institute a vaccine mandate as a condition for participating in those programs.  The Centers for Medicare & Medicaid Services will be publishing rules to detail the requirements more explicitly.

Additionally, earlier this year, OSHA issued an ETS related to healthcare employers. The ETS requires, among other things, that healthcare employers provide paid time off for employees to get vaccinated and recover from adverse side effects of the vaccine and to develop and implement a COVID-19 plan for their workplaces. Please review OSHA’s fact sheet, FAQ and template plan, and check out all of the OSHA ETS guidance at https://www.osha.gov/coronavirus/ets.

 

4. What potential risks should an employer be thinking of if they decide to implement a mandatory vaccination policy?

There are multiple ways an employer can implement a mandatory vaccination policy. Employers may choose to offer onsite vaccination and testing; they may take a “hard” approach requiring everyone to be vaccinated absent a legally protected reason; or they may offer a “soft” approach combining vaccination with testing requirements. Each comes with its own set of risks and obligations.  If you decide to administer vaccines onsite, you may trigger requirements under the Americans with Disabilities Act (ADA), Health Insurance Portability and Accountability Act (HIPAA), and the Genetic Information Nondisclosure Act (GINA). On the other hand, requiring vaccination and proof thereof is not itself unlawful but may trigger accommodation obligations under federal and state anti-discrimination laws. While the needs of every workplace are different, we have included templates in the resources section below that can be modified to help you develop policies adapted to your business. If you have any further questions, please reach out to your HR Account Manager for guidance.

 

5. If an employee states that they have COVID-19 antibodies, should they still be required to get vaccinated?

The CDC advised that the presence of antibodies when a person has not been vaccinated is evidence that they were previously infected with COVID-19 and may have developed a level of protection against the virus.  However, according to the CDC, individuals who recovered from COVID-19 should still get the vaccine as the duration and extent of protection is uncertain.

 

6. For those who have a medical or religious exemption, what are other options to a mandatory vaccination policy?

Ultimately, what qualifies as a reasonable accommodation will rely on various factors and must be analyzed on a case-by-case basis.  Once the need for reasonable accommodations is established, examples of accommodations the EEOC has listed include providing masks, gloves, “erecting a barrier that provides separation between an employee with a disability and coworkers/the public,” or other social and physical distancing measures.  However, accommodations can go as far as changing job functions, decreasing coworker interaction by changing an employee’s work schedule, allowing the employee to work remotely, or in some instances, reassigning the employee. Legal experts are advising that the pandemic has drastically changed the accommodation landscape—things that were once routinely considered “undue burdens” for employers (teleworking, for example) may no longer be deemed as such.  The appropriate accommodation will depend on a fact-specific inquiry the employer engages in with the employee.  In the resources section below, we provide you with a template accommodation procedure form published by our partners at Fisher Phillips.

 

7. Is it safer to wait for the FDA to approve a vaccine before mandating it?

As of August 23, 2021, the FDA granted full approval for the Pfizer vaccine.   However, before this approval, the US Department of Justice issued an advisory opinion stating the Food, Drug, and Cosmetic Act “does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.” This advisory opinion continues to be relevant because vaccines available through Moderna and Johnson & Johnson are still pending full FDA approval but were granted the EUA.  Even if the availability of the Pfizer vaccine becomes limited, an employer can still legally enforce a mandatory vaccination policy.

 

8. Can an employer implement an incentive program for employees that receive the vaccine?

Some employers are choosing to forgo a vaccine mandate and instead offer various incentives for employees to get vaccinated. Those incentives can include paid time off (to get the vaccine, to recover from side-effects of the vaccine, or if the individual contracts COVID-19 after vaccination), cash, and other workplace perks. Employers’ primary objective in designing a compliant incentive program is to make sure the incentives offered are effective but not so high as to be coercive to employees. The EEOC has indicated vaccine incentives fall within the definition of a “wellness program” under federal law, which triggers certain rules and oversight.

Employers must also be mindful of how the implementation of an incentive program may impact individuals who cannot obtain the vaccine because of a disability or a sincerely held religious belief.  An employer will have to offer these employees an opportunity to earn similar incentives because their failure to obtain the vaccine is legally protected.

 

9. If an employee refuses to get vaccinated, can an employer require evidence of a negative COVID-19 test weekly?

The ADA allows employers to implement mandatory medical testing when it is “job-related and consistent with business necessity.”  The EEOC has adopted CDC recommendations when applying this standard and concluded that employers are justified, and it is consistent with business necessity, to adopt COVID-19 testing requirements. Additionally, Biden’s Plan, once implemented, will require employers with 100+ employees to mandate weekly testing when an employee is unvaccinated, and many state laws already require this for certain employers. This means that employers may, and in many cases may be required to, periodically screen for COVID-19 before an employee is allowed to enter the workplace physically. We do not expect federal or state agencies to dictate the type of tests that can be used other than a requirement that the tests be FDA approved (under an EAU or full approval).

 

10. What if an employee refuses to obtain periodic COVID testing?

An employer may prohibit an employee from physically entering the workplace if they refuse COVID-19 testing, absent a request for a reasonable accommodation that would prompt the interactive process. If the employee is required to be physically present to perform their duties, they can go unpaid for the time they are not reporting to work.

 

11. Who would incur the expense of those tests?

The EEOC has issued guidance before the current pandemic stating that if an employer is mandating that employees undergo screening by a healthcare provider chosen by the employer, then the employer “must pay all cost associated with the visit.”  However, it remains unsettled if an employer must incur the cost of testing when the employee chooses where to obtain testing or if they are choosing to test instead of getting vaccinated. The DOL has advised that this inquiry will be addressed in the ETS as it relates to private employers with 100 or more employees.  Please be advised that some state and local laws require that employers cover testing expenses and pay for the employee’s travel time to and from the testing facility.  We have included a chart identifying these state-specific rules in the resources section below.

 

12. What are the acceptable forms of testing that can be implemented?

There are multiple forms of testing related to COVID-19.  Currently, there are tests that detect the presence of antibodies and diagnostic tests, including molecular tests (PCR) and antigen tests (Rapid).  The EEOC has clarified that because antibody tests only reveal past infections, such an inquiry is not “consistent with business necessity” and could potentially disclose genetic information that the employer has no business justification for knowing.  As such, employers should not be requiring antibody testing for their employees and should only require diagnostic tests that screen for the presence of the virus.

When determining the type of diagnostic test that will be utilized, it is important to be sure that the results are accurate and reliable.  The CDC issued guidance on the reliability of the different testing options, and the FDA has published a list of approved antigen tests. While there are many home testing options that the FDA approved via an EAU, in-home tests, though convenient and cost-effective, come with significant challenges for employers in ensuring the integrity of the testing and test results. The best practice would be for any employee subject to a testing requirement to get tested at a facility.

 

13. Can an employer require employees to wear masks in the office?

The CDC currently suggests that masks be worn indoors by all individuals regardless of vaccination status in places of “high or substantial transmission.”  Furthermore, OSHA has adopted CDC guidance and instructed employers to require masks as a necessary step to minimizing known dangers in the workplace. A workplace that does not have a mask policy may be subject to citation and/or fine by OSHA. If an employee does not have a mask, OSHA has stated that the employer must provide masks at no cost. While employers can and should require masks in the workplace, they must still be prepared to engage in the interactive process if an employee requests a disability or religious accommodation that would exempt them from a mask requirement.

 

14. Can an employer require employees to respond to a mandatory survey about their vaccination status?

The EEOC has stated that asking an employee if they have been vaccinated is not likely to result in the disclosure of a disability and is therefore permissible under the ADA.  Employers are allowed to inquire and require documentation to prove vaccination status.  An employer, however, must limit the scope of the question to vaccination status only. Any inquiry into why an employee has not been vaccinated is prohibited under the ADA. If documentation is collected, it is considered a medical record and must be kept separate from employee personnel files and remain confidential.  State and local laws may add further restrictions to such an inquiry.

 

15. What if an employee provides a fraudulent vaccination card?

There have been reports of instances where individuals are securing and using fraudulent vaccination cards.  The FBI issued an alert on March 30, 2021, making it clear that under Title 18 United States Code, Section 1017, the “unauthorized use of an official government agency’s seal,” like the seal for the CDC present on the COVID-19 vaccination cards, is a crime. To curb such practices, an employer can make employees aware of the possibility of prosecution and disciplinary action for using fraudulent vaccination cards.

 
16. What are data collection and retention requirements?

If proof of vaccination is being requested, employers should request that the employee only submit the necessary information to prove they are vaccinated and nothing more.  When an employer instructs employees to only submit proof of vaccination and the employee submits additional medical information in error (records which likely contain confidential health information the employer would otherwise not be privy to), the employer is not considered to have made an impermissible inquiry under GINA or the ADA.  Vaccination information should be retained in a separate file and should remain confidential and only accessible by select individuals.

 

17. Which states are considering legislation that restricts private businesses from asking employees for proof of vaccination or vaccination status?

As of the date of this FAQ, Montana is the only state that has passed legislation prohibiting private employers from requiring proof of vaccination as a condition of employment.  Montana employers may still inquire into the employee’s vaccination status, but the employee is not obligated to respond.  We have included a chart identifying these state-specific rules in the resources section below.

 

18. When a vaccine is mandated, and an employee refuses to comply, how can the employer respond?

An employer may prohibit an employee from entering the workplace if the employee refuses to comply with the established vaccine mandate and has not requested, and been approved for, an accommodation due to disability or a sincerely held religious belief. Ultimately, employers are allowed to establish the terms and conditions of employment. If the employee chooses not to comply solely for personal reasons, they may not be protected under federal, state, or local law.

 

Resources