In fact, according to a recent Small Business Snap Poll by our parent company, Paychex Inc., most business leaders see themselves as having a role in employee vaccination: 75% of small businesses (10-49 employees) and 85% of medium-sized businesses (50-500 employees) plan to motivate their employees to get the COVID-19 vaccine, in large part because they feel responsibility as an employer, and due to the key role the vaccine has on their business viability.*
Can I require my employees to be vaccinated against COVID-19?
The Americans with Disabilities Act (ADA) allows employers to establish a qualification standard that requests that “an individual not pose a direct threat to the health or safety of others in the workplace.” Therefore, according to the current guidance from the Equal Employment Opportunity Commission (EEOC), it does not violate federal law for employers to require employees to get a COVID-19 vaccine, as the virus presents a “direct threat.”
However, an employee could have a medical condition, that would be considered a disability under the ADA, pregnancy or a covered condition under state or local laws, that may affect whether they can receive the COVID-19 vaccine. In other cases, an employee may have a sincerely held religious belief that prevents them from being vaccinated. In both circumstances, such employees may be eligible for a reasonable accommodation to be able to perform their jobs. Before taking any action against an employee who indicates that they cannot be vaccinated for these reasons, employers will need to work with each employee to determine whether they can be reasonably accommodated. This must be an individualized assessment, considering, for example, factors specific to the workplace, the position, and the employee.
Because of these complexities, employers may want to consider encouraging, rather than requiring employees to be vaccinated.
It’s important to note that employers who request or require their employees to be vaccinated may also need to compensate non-exempt employees for their time spent obtaining the vaccination, including traveling to and from the vaccination site.
If I implement a voluntary vaccine policy, how can I encourage my employees to be vaccinated against COVID-19?
Policies that encourage vaccination can increase workplace morale and help avoid the pitfalls that can come with a mandatory policy. Employers can encourage employees to be vaccinated by helping to reduce potential barriers to receiving the vaccine and creating incentives. Incentive examples include:
- A set amount of paid time off for employees who receive the COVID-19 vaccine.
- Additional paid leave to employees who experience side effects from the vaccine (such as fever, chills, tiredness, and headache).
- Flexible scheduling options so that employees are able to receive both doses of the vaccine as it becomes available.
- A one-time incentive payment to employees who can prove that they are fully vaccinated.
According to the Snap Poll, 79% of SMBs (10-500 employees) plan to encourage employees to get the vaccine. Thirty-one percent say they will provide paid leave for employees who get vaccinated during work hours, while nearly one-fourth say they will provide a financial incentive. Twenty percent plan to incentivize employees by subsidizing costs associated with getting the vaccine, including transportation, childcare or medical costs*.
Before implementing any incentive program, employers are encouraged to consult with their legal counsel to ensure compliance with applicable federal, state and local laws.
If I implement a mandatory vaccine policy, what can I do if I’m unable to accommodate an unvaccinated employee?
Before taking any action against an employee who refuses or is unable to be vaccinated due to a disability or medical condition (including pregnancy)or a religious belief — and who cannot be reasonably accommodated — be sure to consult with your legal counsel to determine next steps including whether the employee has any other leave of absence entitlements available under federal, state or local law.
Can I request proof of COVID-19 vaccination from my employee?
Recent guidance issued by the EEOC states that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. However, employers requiring proof of COVID-19 vaccination must accommodate situations where employees are unable to receive the vaccine due to a disability, medical condition (including pregnancy) or sincerely held religious belief, and must be careful not to request medical information from their employees. While simply requesting proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires their employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
- CDC Vaccination Record Cards: Although the Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Record Card includes only limited information such as the date of the vaccine dose, the type of vaccine, and where the vaccine was received — which is not considered medical information under current guidance from the EEOC — employers should be cautious and treat the information like any other medical information collected or obtained from their employees. The information should be secured in a separate location from the employee’s personnel file and should not be shared with anyone who does not have a need to know.
- Vaccine Passports: While employers may ask employees to provide proof of COVID-19 vaccination via vaccine passports — which provide digital proof of vaccination against the coronavirus — they must be prepared to accommodate situations where employees are unable to receive the vaccine due to medical or religious reasons. As with vaccination record cards, the any record of the employee being vaccinated should be treated as medical information and secured in a separate location from the employee’s personnel file. It should not be shared with anyone who does not have a need to know.
Travel is a big part of the job, for some of my employees. Will I have to require them to get a vaccine passport?
No. As COVID-19 vaccination continues to roll-out globally, many countries have started to implement or are considering the use of vaccine passports for international — and in some cases, domestic — travel. The CDC recently released guidance saying fully vaccinated individuals can resume non-essential travel safely within the U.S., stating that fully vaccinated persons can consider international travel if they maintain recommended precautions. While the U.S. government will not require vaccine passports for domestic or international travel, businesses in the private sector — including airlines — may consider doing so. Any employer considering mandating COVID-19 vaccination passports for employee travel should consult with their legal counsel to ensure compliance with federal, state and other mandates.
If some or all of my workforce is vaccinated, will they still need to wear masks or face coverings and practice social distancing?
The Occupational Safety and Health Administration (OSHA) also recommends that employees wear a face covering and remain physically distant from co-workers and customers even if they have been vaccinated. In addition, many states and localities are mandating face coverings, so it’s important that employers review their obligations under state and local laws in order to comply with any restrictions that may apply.
Will my employees be charged a fee to receive the vaccine?
According to the CDC, vaccine doses purchased with U.S. taxpayer dollars will be available without cost to individuals, but vaccination providers can charge a fee for administrating it. These administration fees should be covered by an employee’s health insurance or, in the case of uninsured patients, the vaccine provider can seek reimbursement from the Health Resources and Services Administration’s (HRSA) Provider Relief Fund.
If you’re an employer interested in reimbursing employees for any vaccine administration costs, be sure to consult with your legal counsel to assess potential risks. For example, you may be required to comply with the same requirements as employer sponsored health insurance plans.
* Paychex conducted an online survey of 300 principals of U.S. companies with 2 to 500 employees. The survey was fielded January 27-February 2, 2021.