As more and more people are eligible for the COVID-19 vaccine, many questions have come up regarding what employers can and can’t do about getting their employees vaccinated. Our human capital management partner, isolved, offers this Q&A about what HR departments should know about COVID-19 vaccines.
With all U.S. adults eligible for COVID-19 vaccines, many employers are getting ready for a new normal but are still unsure of what the future of work will look like.
In this month’s Compliance Corner blog, isolved People Services HR Consultant Rachel Barr is answering common questions employers have about the COVID-19 vaccine and having employees return back to the office. Discover what human resources (HR) departments should know by reading the Q&A below:*
1. Can businesses mandate the COVID-19 vaccine? And if so, can employees opt out?
Businesses can mandate the COVID-19 vaccine, and isolved research shows that 44 percent of business leaders are planning to do so. However, there are considerations employers need to take into account, including:
- Under the Americans with Disabilities Act (ADA), an employer must provide reasonable accommodation to an applicant/employee who has a disability. This reasonable accommodation may be an exemption from receiving the COVID-19 vaccine.
- Applicants and employees can also be exempt if they have a “sincerely held religious belief,” which is protected by Title VII of the Civil Rights Act.
Outside of these exemptions, there could be additional reasons an employee may be able to opt-out of the vaccine, such as state or local law and company policies. Business leaders need to look at their unique situation when developing a policy in order to determine what factors could constitute an employee “opting out.” Additionally, employers should consider the current COVID-19 recommendations for their operating state, local availability of the vaccine, potential costs associated with receiving the vaccine, workers’ compensation liability, state and local laws, and overall employee relations issues that may arise.
2. How can employers provide accommodations to employees who cannot receive the COVID-19 vaccine per an exemption?
Each employee situation needs to be handled on a case-by-case basis, taking individual factors into account. However, here are a few accommodations employers can provide to employees who cannot receive the COVID-19 vaccine due to an exemption:
- Allowing for remote work or continuing remote work.
- Flexible scheduling for minimum contact to coworkers, vendors, clients, etc.
- Providing a change to physical office space (e.g.., moving them to a closed office or continuing to keep six feet of social distance between desks).
3. Do businesses need to cover the cost of vaccines for employees?
While businesses will not have to cover the actual cost of the vaccine, as it is currently free to the American public, there are other costs associated with receiving the vaccine that the employer would be responsible for if they are mandating the vaccine (and/or due to federal/state law).
These costs can include paying employees for the time taken to obtain the vaccine, as this would be considered “hours worked.” Travel reimbursement for transportation could potentially be a cost employers cover as well. Employers will need to reference their state and local employment laws to verify what costs may be applicable to them.
4. Can businesses incentivize getting the vaccine? If so, how?
It is possible for businesses to incentivize employees to get the vaccine, however, I would urge them to use extreme caution and seek legal counsel before announcing any such program.
The Equal Employment Opportunity Commission (EEOC) proposed a new rule on January 7, 2021, limiting the value of incentives awarded for participating in wellness activities (including vaccinations) and only allowing items of minimal value to be offered (such as water bottles or gift cards of modest value). The rule was put on hold on January 20th, but the EEOC can make this proposed rule into law at any time.
5. How should HR departments prepare to bring employees back to the office?
HR departments need to ensure that they have a complete return-to-work strategy and process in place before bringing employees back into the office. This strategy should include the following pieces, but this is not an exhaustive list:
- Phased return-to-work plan (if applicable)
- Office cleaning procedures
- Health and safety precautions (social distancing, mask requirements, etc.)
- Injury and illness reporting policy and procedure
- Workers’ compensation policy(s)
- COVID-19 vaccine mandate (if applicable)
- Remote work and/or flexible work policy and procedures
- Employee leave policies and procedures
HR should also consult state and local employment regulations, OSHA standards, health advisories, and any public or employer mandates that may apply before putting a plan in place to bring employees back.
6. What are the benefits of implementing a hybrid return-to-work model?
Hybrid return-to-work models provide many benefits to employers such as lower overhead costs, reducing liability for COVID-19 related exposure and workers’ compensation claims, higher employee productivity, and employee work-life balance.
A hybrid return-to-work model can also be an integral part of an employer’s COVID-19 vaccine policy. It can reduce the risk for potential exposure to COVID-19 (keeping employee health a priority) and regain normal business practices that may take some getting used to after your workforce has been remote for over a year.
7. What steps should HR departments take in developing a COVID-19 vaccination policy?
If business leaders decide to require COVID-19 vaccination for employees, HR departments should first verify that the state(s) the company operates in allow for mandating the COVID-19 vaccine as a condition of employment. This also includes the state(s) employees may be working remotely from, if different from the normal operating location(s).
If it is determined that all work locations (including remote work) allow the employer to mandate the COVID-19 vaccine, then HR must discuss with executive management if mandating the vaccine will be a condition of employment. During this process, it is recommended to consult state and local precedent and legal counsel to prevent potential legal ramifications.
After this discussion and decision, HR should begin to craft a policy detailing the specifics of what the company will/will not require. This policy should include details regarding time off allowed/given for receiving the vaccine, reimbursement for potential costs, a timeline of vaccine completion, reporting vaccine completion, HIPPA considerations and how Personal Health information (PHI) will be treated, and record retention. The policy should then be communicated to all staff, and HR should prepare for potential questions and concerns that may arise.
* This blog is not legal advice. Please seek proper legal advice.