With the increase in the availability of COVID-19 vaccines across North Carolina, the opening of additional vaccine eligible groups and the reopening permitted by Governor Cooper, vaccine-related questions are top of mind for many employers. In light of these questions, we wanted to provide some key guiding points.
As an Employer, Can I Require Employees to Get a COVID-19 Vaccine?
Per current EEOC guidance, employers can mandate the COVID vaccine. However, certain issues and questions remain due to the fact that all currently available vaccines were approved under the “Emergency Use Authorization.” Due to ongoing litigation concerning the “Emergency Use Authorization,” the safest course for employers is to strongly encourage vaccines, but not necessarily to require them.
If an employer elects to require a vaccine, they must provide paid time off (PTO) to employees to allow them time to obtain the vaccine. If vaccines are not made mandatory to return to work, then employers are not required to provide PTO for this purpose. That being said, if an employer is encouraging vaccines, it would benefit employers to provide PTO so as to encourage employees to obtain the vaccine. Employers can consider whether to provide other incentives to obtain a vaccine, such as covering the cost of transportation, cash incentives or other bonuses. However, providing incentives such as these is a legally grey area with regard to The Americans With Disabilities Act (ADA) issues, as we begin to consider whether obtaining vaccines is a “wellness plan” and whether the PTO offered is a “de minimus” incentive to participate in the wellness plan.
Employers may also request proof of vaccination from employees. The request for proof itself is not likely to be a “disability-related inquiry”, but some follow-up questions, such as “why did you not obtain a vaccine” may be. If proof is required, remind the employee not to provide any medical information, and take steps to ensure that all information provided is kept confidential.
Be Aware of ADA and Title VII Issues
Employers do need to be aware of, and on the lookout for issues that may arise under the ADA or under Title VII. If an employee asserts that they need an accommodation due to a disability, employers should be prepared to engage in a flexible, interactive process to identify the disability and the resulting accommodations.
If an employee requests an accommodation under Title VII (religious belief or other Title VII claim), which goes beyond a membership in a particular church and extends to firmly and sincerely held ethical beliefs, employers should assume that an employee’s request is sincere and should be prepared to identify and provide reasonable accommodations.
As always, accommodations under the ADA or Title VII must be provided unless so doing would cause undue hardship to the employer.
What if Employees Elect Not to Obtain a COVID-19 Vaccine?
If an employee is provided with the opportunity to obtain a vaccine and refuses, an employer is not currently required to permit them to continue working from home. However, these actions should be taken with caution and only after certain considerations have been made. Employers should carefully perform the ADA and Title VII analysis. Employers should consider whether the refusal to obtain the vaccine is due to a disability or a sincerely held religious belief and whether the employee’s refusal to obtain a vaccination is a direct threat to the workplace.
Word of Advice
Regardless of whether you elect to mandate vaccines or not, the restrictions of the past year need to remain the same – mask-wearing, social distancing, isolation and remote working where possible – until the CDC and the EEOC issue further workplace guidance.