As COVID-19 vaccines roll out across the U.S., employers must determine whether they will require vaccinations in the workplace and if they should set up a program to administer them.
There are essentially three options available, according to Carrie B. Cherveny, Esq. senior vice president of strategic client solutions for the south region of HUB International.
Carrie B. Cherveny, Esq.
Employers can mandate vaccinations for all employees with some legally required exceptions; motivate and create voluntary programs with built-in motivators to drive everyone to get the vaccine; or educate staff about the vaccine and then leave it up to them to choose.
“Businesses have some really big decisions to make, and while the safety conversation that we have all been having since March 2020 was filled with a lot of nuances and choices to make, I think the vaccine conversation is even more complex and difficult to navigate,” said Cherveny. “Health care has been doing it for years, but these are new conversations and topics for other industries... This is unchartered territory.”
During a virtual panel discussion focused on “COVID-19 Vaccine in the Workplace,” Cherveny and two other representatives from HUB International, a global insurance broker, discussed some of the rules and implications when setting up a workplace program. They included Cory Jorbin, Esq. chief compliance officer, employee benefits, west region; and Wendy King, director of health and performance.
To help companies plan and develop strategies, Cherveny, Jorbin and King shared their expertise about employment law, benefits regulations and well-being best practices.
Regardless of the approach taken, Cherveny said, there are foundational things to consider. She recommended employers determine if their culture will sustain a workplace vaccination program, the financial cost of launching a program and compliance issues, as well as whether they will be able to recruit and retain talent if they mandate a program.
Employment Law
Cherveny shared information about general employment law to understand before building a vaccination program and some business and legal considerations. This applies whether companies administer the program themselves or bring in a third-party vendor who is contracted to deliver the vaccine.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) requires qualified employees with disabling health or medical conditions, under the ADA, are provided with reasonable accommodations. Although state laws may vary, Cherveny explained the ADA typically applies to businesses with 15 or more employees who work for 20 or more weeks in the prior or current year.
“The employee and the employer exchange information to arrive at an accommodation that allows the employee to remain at work performing the essential functions of the job,” said Cherveny. “The employer ultimately gets to determine the accommodation that makes the most sense in light of the medical information and documentation provided by the employee and the nature of the job.”
Cory Jorbin, Esq.
Under ADA guidelines, employers are strictly limited in the medical information they can ask for prior to an offer of employment.
“Your conversation with a job applicant is limited to the essential functions of what it takes to perform the job,” she said. After an offer is made and before an employee begins working, companies have the most latitude to gather medical information.
In terms of the vaccine, Cherveny said asking workers to provide proof of vaccination is not a medical inquiry regulated or managed by the ADA.
“You can simply ask an employee to provide proof of receiving the vaccine and it’s not considered a medical inquiry under the ADA,” she said.
Administering the vaccine is also not considered a medical inquiry under the ADA, although the necessary and related pre-vaccination questions are.
Regardless of the type of program established, once employers become aware there is a medical condition that prohibits a team member from receiving the vaccine, they must determine if there is a reasonable accommodation available.
For example, this could mean working remotely or in an office with a closed door or plexiglass or wearing additional personal protective equipment, such as an N95 or double mask.
ADA Legitimate Business Justification
If an employee chooses or is not able to get a vaccine and the employer feels this represents a direct threat of spreading COVID-19 in the workplace, Cherveny said to be cautious.
“Be very careful if you want to rely on the direct threat defense in excluding an employee from the workforce because they can’t get the COVID vaccine,” she said. “You have to go through a very specific analysis to determine whether or not the employee actually represents a direct threat.”
One of the biggest questions management asks, according to Cherveny, is if staff can be fired for not getting the vaccine if there is a mandatory policy in place. If there is no accommodation available, Cherveny said, only then may an employee be excluded from the workforce.
However, both the Equal Employment Opportunity Commission (EEOC) and Centers for Disease Control and Prevention (CDC) instruct employers to explore remote/work-at-home options before ending the employee’s employment.
Additionally, ADA guidelines require businesses to go through a specific process before determining if an employee cannot remain in the workplace. There are also local health and state rules to abide by.
Wendy King
“Do not start firing employees for failure to get the vaccine without first talking to outside counsel and being sure that you are up to speed and up to date on any local requirements or prohibitions from firing employees for failure to get the vaccine,” said Cherveny. “Proceed with extreme caution!”
Religious Exemptions
In addition to the ADA, there are religious exemptions associated with the vaccine.
“There are many religions that are opposed to vaccinations and under Title VII of the Civil Rights Act,” said Cherveny.
As a result, companies are required to engage in a cooperative, collaborative process to identify an appropriate accommodation, much like the ADA interactive process.
Pregnancy Discrimination Act
As of January, the vaccine had not been tested or approved for pregnant women. When it is available, Cherveny said there is no obligation to accommodate a pregnant individual.
“However, we very much recommend you be flexible with your pregnant workforce and allow them accommodation-like opportunities as well,” she said.
Cherveny said to keep in mind some pregnant women may have medical complications associated with pregnancy that may qualify under the ADA.
Medical Confidentiality
While information is being gathered in the process of administering a voluntary or mandatory vaccination program, employers will become aware of confidential, private medical information about their employees. Cherveny said there are a limited number of people whom it can be legally shared with, such as immediate managers and supervisors, and human resources---those who “need to know,” which is construed very narrowly.
Workers Compensation
If an employee seeks medical attention or misses time at work due to any side effects associated with the vaccine, workers compensation may kick in depending on the insurer carrier and the state.
National Labor Relations Act
Section 7 of the National Labor Relations Act allows workers to freely discuss the terms and conditions of employment.
“Employees who want to talk about your vaccine program have a right to do so; you generally can’t discipline or fire them,” explained Cherveny.
Occupational Safety and Health Act (OSHA)
OSHA includes the General Duty Clause that states businesses must provide a safe working environment for employees. Cherveny said there are two schools of thought regarding vaccines in the workplace.
One is that it is unsafe to require a vaccine in the workplace because it is only under emergency use authorization. As a result, she said some law firms and other subject matter experts advise against mandatory programs.
On the flip side, others are taking the position that the CDC and FDA recommend people get vaccinated, so it would be unsafe not to vaccinate.
“Either way, it’s important to talk to counsel as you make these important decisions,” said Cherveny. “You may or may not stumble into some risk exposure or claim later that mandating or not mandating, offering or not offering it created an unsafe working environment in your workplace.”
Regardless of the approach taken, Cherveny reminded attendees that the CDC and OSHA guidance instructs employers to continue their COVID-19 safety programs. This includes wearing masks, applying disinfectant, social distancing and following all safety protocols.
Employee Benefits Regulations
Jorbin addressed employee benefit regulations associated with the vaccine, including cost.
“Essentially, all health plans, except for grandfathered plans, need to cover the cost of the vaccine,” he said.
This includes fully-insured and self-insured plans, non-ERISA (Employees Retirement Income Security Act of 1974) MEC (Minimum Essential Coverage), individual market plans, Medicare and Medicaid.
While the federal government is funding the cost of the vaccine, the health plan must pay the administration fees. Jorbin said the amount will vary based on provider, geographic area and contract negotiations.
Those without health coverage will be able to obtain the vaccines for free, although the timeframe is currently unknown.
“Part of that will depend on the state they live in and what phase of distribution they fall into,” he said.
When it comes to deciding between in-network and out-of-network providers, Jorbin said in-network providers must be paid the negotiated rates under the insurance plan. If going out-of-network, the official language states, “Providers must be reimbursed an amount that is reasonable, as determined in comparison to prevailing market rates for such service.”
The federal government has set the minimum amount considered reasonable the same as what Medicare pays for the vaccine.
In a situation when an out-of-network provider doesn’t accept the price paid by the plan as reasonable, there is a potential for what is called “balance billing.” This is where the provider seeks full payment of the charge. As a result, Jorbin said it usually pays to go to an in-network provider.
For businesses that operate in multiple states, Jorbin said there might be different prevailing market rates for the vaccine depending on location.
Wellness Programs
Employers must also decide if the fees associated with a vaccination program should be associated with a health plan or another cost center, such as a wellness plan or safety program.
King pointed out depression and serious psychological distress are factors to consider.
Prior to the vaccination being rolled out, depression and anxiety were at an all-time high, she said---anxiety rates were three times higher in 2020 than in 2019, and depression and diagnosis of depression quadrupled over the same period.
“We would be remiss not to start with the foundation around employee state of mind,” said King. “The vaccine is a hot topic. It’s one more layer that many employees are stressing over right now.”
While some feel it is the light at the end of the tunnel and the vaccination signals an end to what has been going on, King said others are hesitant.
She encourages management to acknowledge many have anxiety and fear the unknown. However, people are beginning to think of the risk and reward like any other decision.
“They are going through the process to determine if it is worth the risk to get to the reward, which we know is getting back to some sense of normalcy,” said King.
As businesses decide if they will mandate a program or begin with a voluntary offering, King recommends approaching it in a way that treats people like people.
“Being cognizant that employees are already having a lot of personal anxiety around the vaccine will help you to really approach it in a humanistic way and balance your corporate goals with the culture goals in your organization.”
As of January, about 40% of Americans say they will take the vaccine as soon as it is available, said King. According to the Kaiser Family Foundation, another 30% will probably get it.
“Therefore, about 70% will get the vaccine whether or not you structure it as mandatory or voluntary,” said King.
The top reason for hesitancy is the worry about potential side effects. However, statistics are showing interest is growing with time.
“The closest thing we have to compare it to is the flu vaccine, but we can’t compare it equally to the flu because it’s a new vaccine,” she said.
“Today, studies show that physicians are the highest trusted authority, not the employer; people want to talk to a doctor, understand the facts and feel comfortable taking the vaccine,” she said.
For businesses considering offering individual financial incentives, King pointed out it can pose complexities.
“It’s not like rewarding an employee for going to an annual visit with a physician,” she said. “This is a personal decision for many.”
For those who decide to offer incentives, she recommends those with a lower financial value, such as gift cards and water bottles, so individuals don’t feel they are missing out on a big incentive. Another option is to offer a group incentive, such as a lunch or a competition among departments.
Like most wellness programs, King said companies must think through the required steps to ensure that the engagement, medical information, appropriate disclosures and incentive limits are set up in a way that keeps the organization compliant.
In terms of vaccination distribution, as of January, there is no national onside vaccination provider. Vaccine rollouts across the country currently differ, depending on the state; even age requirements vary.
Therefore, King recommends referring to state regulatory websites, connecting with local pharmacies and encouraging staff to reach out to their physicians.
King said this is a good time to have conversations with managers about what’s in store and educate them. She said it could go a long way in ensuring they are going to embrace the approach and be a positive word of mouth in the organization.
“However you decide to coordinate this within an organization, whether it’s mandatory or voluntary and with or without a financial incentive, leadership is really going to need to get in front of the communications around it,” said King. “It’s a complex situation and going to require dedicated communications.”
This may include flyers, postcards and other educational materials offered by the CDC and organizations like HUB International.
Looking ahead, King predicts there will be a lot more education circulating about the vaccine.
When talking to staff, King said to not focus on the benefits to the company or the bottom line.
“Make it about the safety of your patrons, clients and the health of employees so from a corporate perspective, it’s not just about numbers or business goals, but more about how we can thrive together.”
This is the first in a series of COVID-19 vaccination articles. Next in the series is "Implementing an Employee Vaccination Program: Cost, Access and Communication."
HUB International offers an e-book with more information.
Stacey Phillips Ronak