Tag Archives: COVID-19 vaccine

Yes, Your Employer Can Require You To Be Vaccinated, According to a Federal Judge in Texas

Contributed By: John R. Hayes, June 14, 2021

A federal judge in Texas on June 12, 2021 dismissed a lawsuit brought by Texas health care workers challenging their hospital’s COVID-19 vaccine mandate. The scathing opinion by U.S. District Judge Lynn N. Hughes left no doubt that he believed the claims of the 117 plaintiffs were without merit.

The lawsuit was brought by employees of Houston Methodist Hospital, who had refused the vaccine, after the hospital in April announced a policy requiring  vaccination of all employees.  In early June, over 170 employees of the hospital were suspended for two weeks without pay over their decision to refuse getting the COVID-19 vaccine. If these employees did not get vaccinated within two weeks then they would be terminated. At the time of the filing, almost 25,000 Hospital employees had complied with the vaccination requirement, and approximately 285 employees had received medical or religious exemptions. 

The employees refusing the vaccine claimed that the policy of the hospital requiring the COVID-19 vaccine of its employees was an effort to coerce them into becoming test subjects for an untested and unreliable vaccine. Echoing a refrain made by many who are refusing the vaccine, the plaintiffs argued that the lack of full approval by the Food and Drug Administration (FDA), justified their refusal to get vaccinated. While not yet granting full approval for the three vaccines in the United States, the FDA has granted emergency use authorization for the vaccines, and approximately 173 million Americans have received at least one dose, with over 143 million being fully vaccinated.

In his opinion, Judge Hughes found that the plaintiffs were not “coerced” to get the vaccine, and that public policy clearly supports widespread inoculation efforts. Specifically, the court said that lead plaintiff and nurse Jennifer Bridges’ claims that the vaccines are “experimental and dangerous” were “false” and “irrelevant.”  He went on to say Bridges’ argument that the vaccine requirement equates to medical experimentation in Nazi concentration camps was “reprehensible.” 

Further explaining that the employees were not coerced, Judge Hughes stated that the hospital “is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Calling it “all part of the bargain” between a worker and their employer, the court stated “every employment includes limits on the worker’s behavior in exchange for his renumeration.”   

While the focus of the opinion was on Texas law regarding wrongful discharge, it appears to be the first of its kind regarding vaccine mandates, and has implications nationwide.  Judge Hughes cited to the Equal Employment Opportunity Commission’s (EEOC) updated May 28, 2021 guidance that employers can require employees to be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. He further stated that while this guidance is not binding “it is advice about the position one is likely to meet at the Commission.” 

The lawyer for the plaintiffs stated he planned to pursue an appeal.

Ultimately, the decision whether or not to mandate vaccination of its employees is up to the individual employer. While some hospital systems and other health care institutions such as nursing homes and home health care providers in the country are moving to require COVID-19 shots, many private employers have not yet taken that step. And although the EEOC has said employers can require vaccines, subject to certain exemptions, there still remain questions on the legality of doing so, as evidenced by this lawsuit. Any workplace vaccination policy—whether a mandate or one that provides incentives to get the shot—should be carefully considered in advance, ideally vetted by experienced employment counsel. 

We are continuing to monitor this evolving situation, and will update our blog with any new developments.

EEOC Issues Updated Guidance Addressing COVID-19 Vaccine Incentives Among Other Issues

Contributed By Steven Jados, May 28, 2021

Medicine doctor and vaccine dose

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.

Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a vaccination administered by the employer or its agent.

As to the first scenario, the EEOC’s guidance says little more than that requesting proof of vaccination is not a disability-related inquiry covered by the Americans with Disabilities Act (ADA), and also does not seek information protected by the Genetic Information Nondiscrimination Act (GINA), and therefore employers may offer incentives to employees who provide proof that they were vaccinated. 

The guidance for the second scenario is a bit more detailed. It states that incentives may be offered, so long as the incentive (whether it is a reward or penalty) “is not so substantial as to be coercive.” The difference between the first and second scenarios is that in the second scenario, employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination inquiry. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

The EEOC’s guidance is that the incentive limitation in the second scenario does not apply to the first scenario—because the first scenario is just asking for proof of vaccination status, which is not a disability-related inquiry in the EEOC’s eyes. However, we recommend caution in providing large incentives in first scenario circumstances, too, given the recency of this EEOC guidance, and the thorny issues and litigation risks that can arise with respect to incentive programs that touch on employee health and medical information.

On the subject of mandatory vaccines, the EEOC’s updated guidance makes clear that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” subject to reasonable accommodation and other EEO considerations. The guidance includes expanded advice for responding to employees who do not want to be vaccinated due to medical or religious reasons or because of pregnancy. (A word of caution: federal EEO laws are not the only game in town, and there is a possibility that other laws could prohibit employers from imposing mandatory vaccine policies—so be careful.)

The EEOC’s next piece of guidance should not come as a surprise to our loyal readers: employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.

The EEOC’s updated guidance also includes several links to resources available for employers to educate their employees about COVID-19 vaccinations and related issues.

As discussed above, issues relating to vaccine incentives—and really any issue relating to COVID-19 vaccines in the workplace—can get thorny very quickly. With that in mind, we recommend engaging experienced employment counsel before wading too deep into these issues.

US DOL Publishes Model Notices for American Rescue Plan COBRA Subsidy

Contributed By Rebecca Dobbs Bush, April 8, 2021

close up of the hands of a businessman in a suit signing or writing a document

The American Rescue Plan Act (ARPA), signed by President Joe Biden on March 11, 2021, included a COBRA Subsidy covering 100% of COBRA premiums for “Assistance Eligible Individuals” during the period of April 1, 2021 through September 30, 2021.  The 100% premium subsidy will be reimbursed to employers through their quarterly payroll tax returns. 

Pursuant to ARPA, employers are required to notify certain individuals about potential eligibility and details of the subsidy by May 31, 2021. Individuals then have 60-days to elect.  And although Notice 2021-01 described extensions of various plan deadlines for potentially up to 1-year or 60-days after the expiration of the “Outbreak Period,” the US Department of Labor (DOL) now makes clear in its FAQ on COBRA premium assistance under the American Rescue Plan Act of 2021, that this extension of timeframes for employee benefit plans does not apply to notice periods related to the COBRA premium assistance.  Also noted within the published FAQ, a penalty of $100 per qualified beneficiary, not to exceed more than $200 per family, may be assessed on employers for each day they are in violation of the COBRA rules.

Model Notices Available:

The above model notices cannot be used without modification that customizes each with specific information about the relevant individual and the employer’s group health plan. As potential fines for noncompliance can be steep, employers should carefully set procedures for timely distribution of all requisite notices. 

Can I Ask My Employees If They Have Been Vaccinated?

Male doctor hand wears medical glove holding syringe and vial bottle with COVID-19 vaccine

Contributed by Heather A. Bailey, April 6, 2021

The short answer is: Be careful what you wish for!  During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination.  For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax.  This is different from someone not getting vaccinated due to a disability or religious belief.  Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context.  The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory,  you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

  • Again, be careful what you wish for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
  • You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
  • When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
  • If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question). 

Yes, Even Vaccinated Employees Must Continue Wearing Masks

Contributed by Peter Hansen, March 3, 2021

Vector attention sign, please wear face mask, in flat style

Now that COVID-19 vaccines are starting to roll out, employees who have been vaccinated are beginning to question whether they are still required to wear face masks, practice social distancing, etc.  In short, yes they are – according to the Occupational Safety and Health Administration, along with numerous state agencies, “it is important to wear a face covering and remain physically distant from co-workers and customers even if you have been vaccinated because it is not known at this time how vaccination affects transmissibility.”

So, the same workplace protocols apply to vaccinated and unvaccinated employees, with one very limited exception: the Centers for Disease Control and Prevention issued guidance providing that vaccinated employees who were exposed to someone with COVID-19 are not required to quarantine if they meet all of the following criteria:

  • The employee is fully vaccinated (i.e., 2 or more weeks following receipt of the second dose in a 2-dose series, or one dose of a single-dose vaccine);
  • The exposure occurred within 3 months following receipt of the last dose in the series; and
  • The employee has remained asymptomatic since the COVID-19 exposure

Accordingly, employers should continue enforcing their existing workplace COVID-19 protocols – and reiterate to their entire workforce that all employees are still required to wear masks, practice social distancing, and report exposure to COVID-19 regardless of whether they have been vaccinated.

Of course, and as with everything else surrounding COVID-19, vaccine-related information available and protocols regarding vaccinated employees is subject to change, so stay tuned.

What President Biden’s American Rescue Plan Could Mean for Employers

Contributed by Suzannah Wilson Overholt, February 17, 2020

COVID-19 stimulus package, US dollar cash banknote on American flag

Congress is turning its attention to President Biden’s $1.9 trillion economic stimulus package, which is called the American Rescue Plan.  Because the package includes enhanced unemployment benefits that are currently set to lapse in mid-March, Congress is under pressure to take action by then.

The following aspects of the proposal have a specific impact on employers:

  • Restoration and expansion of emergency paid leave
    • President Biden has proposed reinstating and expanding the paid sick and family leave benefits passed as part of the Families First Coronavirus Relief Act (FFCRA) which expired in December. The proposal would reinstate those leave provisions through September. (Read more about the FFCRA leave requirements in our previous blog from March 2020).
    • The proposal expands the leave requirements to cover businesses with fewer than 50 and more than 500 employees, as well as first responders and healthcare workers, who could be exempted from the original leave requirements.  (The proposal would also grant leave to federal workers.) 
    • The government will reimburse employers with fewer than 500 workers for the full cost of providing the leave.
  • Restaurant industry:  The proposal includes the FEMA Empowering Essential Deliveries (FEED) Act that uses the restaurant industry to get food to families in need and helps get laid-off restaurant workers back to work. 
  • Minimum wage:  President Biden’s proposal includes raising the minimum wage to $15 an hour over four years and ending the tipped minimum wage and the sub-minimum wage for people with disabilities. Whether this will actually be considered by Congress as part of the stimulus package is uncertain.
  • Worker safety:  The proposal includes provisions regarding worker safety, which we addressed in a previous blog

Other aspects of the proposal that, while not being specifically workplace related, have an impact on workplace issues are as follows:

  • Vaccines and testing:  The proposal seeks $160 billion for vaccines, testing and related programs to fight COVID-19.  It includes $20 billion for a national vaccination program and $50 billion for testing.  Part of the funding would be directed to hiring public health workers to help administer vaccines and tests.  The goal would be for more people to be vaccinated faster, which should allow more employees to return to work and more businesses to re-open.
  • Extension of pandemic unemployment programs
    • President Biden has proposed increasing federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that Congress approved in December. 
    • The Pandemic Emergency Unemployment Compensation program, which applies to those who have exhausted their regular state jobless payments, and the Pandemic Unemployment Assistance program, which provides benefits to the self-employed, independent contractors, gig workers and certain people affected by the pandemic, would both be extended.
    • These payments and programs would be extended through September. Currently, they are set to expire in mid-March.
  • Child care: President Biden’s proposal creates an emergency stabilization fund for child care providers to allow them to re-open and stay open. It also contains additional funding to assist families with child care expenses. 

We will provide updates about the status of these proposals as they work their way through Congress.

Update: EEOC Issues Guidance Regarding COVID-19 Vaccines in the Workplace

Contributed by Suzannah Wilson Overholt, December 16, 2020

Doctor hand wears medical glove holding syringe and vial bottle with covid 19 vaccine drug multiple dose for injections.

In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.

The key takeaways from the EEOC’s guidance are as follows:

  • In order for an employer to require the COVID-19 vaccine, it must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:
    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm. 
  • An employer must provide reasonable accommodations to a vaccine requirement for employees who seek accommodation based on disability or a sincerely held religious belief, practice, or observance. The EEOC has consistently required such accommodations, which we described in an earlier blog.   
  • The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA). 
  • Pre-screening questions associated with administering the vaccine may implicate the ADA’s prohibition on disability-related inquiries if the employer requires the vaccine and answering the questions is mandatory. If the employer administers the vaccine, it must show that pre-screening questions are “job-related and consistent with business necessity.” This is not a concern if the vaccine and answering the questions are voluntary.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. 
  • Title II of the Genetic Information Nondiscrimination Act (GINA) is NOT implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.
  • GINA may be implicated if pre-screening questions include questions about genetic information, such as family medical history. If the pre-vaccination questions include questions about genetic information, employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Due to the evolving nature of this issue, advice of qualified counsel should be sought before implementing any COVID-19 vaccine program in the workplace.