The regulatory landscape creates specific obligations that employers must adhere to when implementing a mandatory COVID-19 vaccination programme.(1)
Employers that implement a mandatory vaccination programme should pay close attention to their responsibilities under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Genetic Information Non-discrimination Act (GINA), Occupational Safety and Health Administration (OSHA) guidelines and the Employee Retirement Income Security Act (ERISA), as many of the traditional applications of those laws apply to this type of programme. For example, employees that have specific ADA or Title VII challenges (eg, a sincerely held religious belief, practice or observance) or disabilities that could prevent them from complying with the policy must be provided with reasonable accommodations unless this would pose an undue hardship. With the opportunity for employers to request additional supporting information to verify an employee's request under the ADA or Title VII, employers should assess these situations on an individual basis and look to understand various factors when evaluating:
- the severity of the harm;
- the likelihood of harm to others; and
- the imminent consequences of the threat.
To track or not to track: the million-dollar compliance question
To maintain the integrity of a mandatory vaccination programme and ensure compliance within the organisation, employers should commit to deploying a comprehensive tracking system. The intention behind a mandatory programme is to ensure that the employer's workforce is protected so that it can resume normal business activities and operations to pre-COVID-19 levels. By having a robust tracking system, employers can stay on top of:
- employees who have been vaccinated;
- individuals challenging the policy;
- professionals who need accommodations; and
- other unique circumstances.
On the contrary, it is not recommended to implement a tracking system for a voluntary vaccination programme as the ambiguous ask for employees to self-report leaves a lot of unknowns and inconsistencies.
Undoubtedly, an administrative burden accompanies any kind of tracking system; however, the benefit outweighs those concerns and should be considered early on as an employer looks to deploy a mandatory programme.
Be cautious about employee data provided as proof of vaccination or pre-vaccination screening
Employers must carefully manage the information that employees provide as a means to verify their vaccination or as part of a pre-screening vaccination process. Due to strict parameters set by the GINA, the ADA and the Health Insurance Portability and Accountability Act (HIPAA), employers must be clear about the information that they are requesting through targeted forms and other means to ensure that employees provide only the necessary details that demonstrate compliance with the overall policy. With the ADA, employers must show that pre-screening questions are job related and consistent with business necessity. Under the GINA, employers cannot enquire about an individual's or family member's genetic information, including:
- genetic tests;
- family medical history;
- requests for, receipts of or participation in clinical research, including genetic services; or
- genetic information about a foetus carried or an embryo legally held using assisted reproductive technology.
Employers must also be aware of instances where an employee inadvertently provides medical information. Depending on the circumstances, such instances may require the employer to maintain a separate set of protocols to comply with HIPAA.
Should employers implement a mandatory or voluntary COVID-19 vaccination programme?
There are many factors that an employer should consider before deciding whether a mandatory vaccination programme is the right path for it to take. The upside of having a vaccination programme is that it can bring a lot of benefits to an employer as it looks to return to normal, including:
- motivating its workforce;
- expediting the return of employees to a traditional work setting;
- relaxing COVID-19-specific policies; and
- eliminating the health concerns in high-risk environments.
However, there are drawbacks that employers should evaluate before fully committing to this kind of programme, including:
- required compliance tracking and data management of information provided by employees, including the challenges presented by outsourcing the management of this information;
- limited impact on social distancing protocols, as employees will still need to comply with those policies;
- an increased need to provide special accommodations to address the challenges raised by the ADA, Title VII and OSHA, including the risk of providing an uneven application of accommodations that may lead to discrimination claims; and
- the potential for workers' compensation claims relating to adverse reactions to the vaccination.
Employers must also be aware of instances where an employee inadvertently provides medical information that constitutes health data, as this will require a separate set of protocols that the employer must follow in order to comply with HIPAA.
For voluntary programmes, there are expected benefits from a self-reporting system, but drawbacks as well. Employees will be less likely to raise retaliation claims or other adverse actions, while an employer has more flexibility with the types of information that it can solicit through pre-screening questions as a result of the ADA and a GINA-compliant voluntary wellness programme. In addition, ADA and Title VII accommodations do not apply as the programme is completely voluntary. Keeping that in mind, a voluntary programme offers less benefits in terms of an employer's ability to ensure that its workforce is fully vaccinated, open up operations where safety concerns exist and pull back on COVID-19 policies such as social distancing.
The application of ERISA will be determined by how involved the employer is in the vaccine programme. Employers which opt for an incentive programme and do not offer to pay or provide the vaccine need not create an ERISA plan. However, employers considering sponsoring onsite or near-site vaccine programmes (or using a third party to administer vaccines to employees) must be mindful of their ERISA plan. While it should not be a heavy lift on the employer's part, they must be sure to dot their I's and cross their T's, including adding the necessary information to the summary plan description and updating the participant count. In addition, while there might be compliance obligations to bear in mind, ERISA pre-emption means that employers need not worry about some state and local laws.
Employers should also bear in mind the following considerations:
- Taxation – if offering an incentive programme, employers must be careful of what is taxable and what is not. Time off is taxable, while gifts (eg, water bottles) are considered de minimis and are not taxed.
- Participation – will this benefit be offered to all employees or just those under the employer's health coverage? Will the programme be extended to dependants?
- Funding – the cost of an onsite or even near-site programme can be steep. Under the Affordable Care Act, vaccines are considered preventive medicine, and group health plans will be responsible for the entire cost of vaccine administration.
- HIPAA privacy implications – if providing an onsite clinic or vaccination fair, HIPAA and state privacy should be top of mind. Using a third party to store participants' data will help to insulate the employer from HIPAA.
Endnotes
(1) This article is based on a COVID-19 webinar series on returning to work. Further information on the COVID-19 vaccine is available here, and further information on returning to work is available here.
