Estimated reading time: 12 minutes
The news about COVID vaccines is very positive and encouraging. If you’ve already received your vaccine or have an appointment to do so, good for you! If you’re still patiently waiting, stay patient! COVID remains a very serious virus and we need to continue to take precautions.
With eligibility requirements expanding, organizations need to start thinking about how the vaccine rollout impacts their operations. Organizations are going to want to think both short- and longer-term about their communications to employees where the vaccine is concerned.
To help us understand some of the business decisions that we need to consider, I’ve asked back my friend Carrie Cherveny to offer her insights. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, Carrie works with clients to develop strategies that ensure compliance and risk mitigation when it comes to insurances such as health and welfare programs and employment practices liability.
Carrie has helped us throughout the pandemic to understand the matters that organizations need to consider. I love her insights on this article whether companies can mandate that employees return to the workplace during the pandemic. Please don’t forget that Carrie is a lawyer, and her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed COVID questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.
Carrie, should organizations implement a COVID vaccine program? And if so, how is an employer program different from what’s happening through government and public health agencies?
[Cherveny] Employers will have to decide if they want to mandate, motivate, or educate employees when it comes to the vaccine. The employer’s approach is contingent on a number of factors such as culture, industry, job-functions, budget, and HR/compliance resources. Other considerations may include:
- Who? Would some or all of the workforce be included in the policy?
- What? Would your policy be uniform or would different positions have different rules? For example, all customer-contact positions may be required to receive the vaccine but all ‘back of the house’ positions may elect to receive the vaccine.
- Risk Analysis: What are the risks in your business or industry of not vaccinating your workforce, compared to the risks of mandating the vaccine?
- Enforcement: Is your organization prepared to turn away candidates who are not willing to be vaccinated, and terminate employees who do not have a legal exception to the vaccine?
- Culture: The vaccine can evoke a variety of responses and reactions – is your organization prepared to respond to your employees’ fear, uncertainty, and doubt?
- Compliance: Do you have the subject matter experts to address the vaccine compliance considerations? A mandatory and/or vaccine incentive program requires internal HR to address the compliance considerations such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA) to ensure that the program comports with these legal requirements.
An employer’s program is different from state programs because the state is actually delivering the vaccine. Instead, the employer operates much like as a source of information and (potentially) motivation.
If organizations decide to implement a COVID vaccine program, what should be the program’s purpose? Meaning, do organizations have direct access to provide vaccines?
[Cherveny] Currently, only those organizations that are authorized to dispense the vaccine are able to directly provide the vaccine to its employees. For the most part, vendors are reporting to HUB that they are not yet able to come on-site to deliver vaccines to employees for at least two reasons:
- First, vaccine eligibility remains limited. States continue to roll-out eligibility criteria. Refer to this “How Do I Get a Vaccine?” portion of this Centers for Disease Control (CDC) page for more information. But no state has opened the vaccine to everyone. There continue to be limitations such as those over a certain age or in specific industries/professions.
- Second, there is not yet enough vaccine inventory to deliver the vaccine on a wide-spread basis. In fact, many vendors have told us here at HUB International that they don’t expect to be able to deliver on-site vaccines to employers until next year. Some vendors have stated that they may be able to deliver vaccines on-site later this year but will only do so for single-site employers with 1000+ employees in one location.
All organizational COVID vaccine programs need to have some sort of communications plan. What are 2-3 things that employers will want to communicate?
[Cherveny] Any communication plan should begin with a cross-functional internal task force that includes all levels of employees from various organizational departments. Included on the task force may be someone who leads the effort to implement the company’s vaccine education and engagement plan. A communication plan should also include:
Diversity and Inclusion: Be sure your task force and communication plan includes input from a diverse group of employees with a variety of job functions, backgrounds, gender, races, religions, socio-economic, and geographic footprints. It’s also a good idea to consider a diverse communication approach. Using a multi-media approach will be more likely to speak to a wider audience. Consider, for example, social media, recorded videos, posters, table-tents (for breakrooms and other public areas), blogs, newsletters, email, and live ‘town-hall’ forms of communication. Be sure you also have opportunities for Q&A.
External Resources and Experts: Employers may include messaging from both internal and external leaders. For example, the committee may seek messaging from local community organizations, healthcare providers, religious leaders, and internal leadership/influencers. Moreover, employers may also hold events and invite them to speak to the employees. Additionally, local and state department of health often offer local representatives who may provide messaging and may even speak with employees.
Ongoing Preventive Requirements: All employee communications should reinforce your COVID safety policies and protocols. Employees must be reminded that regardless of their vaccination status, they must continue the employer’s safety rules such as wearing masks, hand-washing, and social distancing.
Be a Trusted Resource: In many cases, employers will have the opportunity to be a trusted source of information. Providing information and fact sheets from the CDC, the U.S. Food and Drug Administration (FDA), community public health experts, and leaders may help your employees, workers, customers, and other stakeholders make the best decisions for themselves and their families. Employers will have a unique opportunity to be a source of fact-based trusted information about the safety and efficacy of available vaccines.
We all know there are individuals who cannot or will not take the COVID vaccine. How should organizations prepare for those situations?
[Cherveny] Initially, employers should distinguish between: (1) employees that specifically cannot receive the vaccine (for a legally protected reason); and (2) those who choose not to receive the vaccine.
The lines of communication between the employer and employee are very important. The employer must be sure that it develops a written policy that includes avenues for employees to seek an accommodation on the basis of their religion under Title VII of the Civil Rights Act and/or health condition under the ADA. The Equal Employment Opportunity Commission (EEOC) has provided guidance to employers regarding protected classes and vaccines in the “K” series of its FAQ.
Under Title VII and the ADA, the employer must establish a process to ensure that the employer and employee engage in a cooperative effort to address any conflict between the employee’s health condition and/or religious belief or practice and the employee’s ability to receive the vaccine. However, there are ‘no magic words’. To request an accommodation, an employee may use ‘plain language’ and need not mention any particular terms such as ‘disability’, ‘Title VII’, or ‘religious accommodation’. The applicant or employee must provide enough information to make the employer aware that there exists a conflict between the individual’s religious practice or belief and a requirement for applying for or performing the job.
Both the ADA and Title VII allow the employer to request supporting documentation but each under somewhat different circumstances.
- ADA Document Requests: Because the ADA limits the employer’s ability to seek employee medical information, employers must be sure they have an ADA compliant medical information request form. The employer may require the employee to have his/her health care provider complete this form as part of the interactive process.
- Title VII Document Requests: When the employer does not have enough information or a bona-fide doubt regarding the sincerity of the religious belief, it may ask about the facts and circumstances of the employee’s claim that the belief or practice at issue is religious, sincerely held, and it gives rise to the need for the accommodation. However, employers should remember that the EEOC instructs that Title VII defines ‘religion’ very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It likewise includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.
Finally, employers should keep in mind that employees do not have the right to the accommodation of their choice. The employer is obligated to provide a ‘reasonable accommodation’, one that ‘reasonably’ accommodates the employee’s disability or religion, and that does not impose an ‘undue hardship’ on an employer. However, the employer is not required to provide the employee’s requested or preferred accommodation.
Employers should also check their state and local laws regarding vaccine programs, mandatory programs, and employee exceptions. Local counsel will be a very important resource and partner in any employer vaccine program.
Other vaccine objections include employees who object to receiving the vaccine on a basis that is not protected by any local, state, or federal law but they do so at their own risk. Employers do not have an obligation to accommodate or protect employees who choose not to receive the vaccine on the basis of their own personal beliefs.
However, employers should proceed with some caution. Currently, the only vaccines available are under an EUA (Emergency Use Authorization) and do not have full FDA approval. With respect to EUA-vaccines, the FDA has a regulatory obligation to ensure that potential recipients of such vaccines are informed of the known benefits and risks and have the option to accept or refuse it for any reason. As long as the EUAs are in effect, this right to refuse directly may conflict with an employer-mandated program and exposes the employer to more legal uncertainty and risk. Never before has an employer vaccine program been established on the basis of an EUA vaccine and we do not know if the EUA status will alter the years of established legal precedent regarding an employer’s right to implement a vaccine program.
Last question. I’ve seen articles about organizations paying bonuses or providing paid time for employees to get the COVID vaccine. We know you can’t dispense legal advice, but what should organizations be thinking about as they put these types of programs in place?
[Cherveny] There are a number of considerations and even more uncertainties with respect to vaccine incentives. Individual financial incentives may have little to no bearing on whether a person decides to take the vaccine. If they are fearful or have strong feelings against taking it, a gift card or premium credit/surcharge is not likely to incentivize them to change their mind on something they feel strongly against for their own personal reasons. In turn, those who are ready to get the vaccine will get it with or without incentives. In that case, the financial incentives the employer pays out may be money wasted because the financial incentive was never needed to persuade that population.
There are also compliance considerations with respect to a vaccine incentive program. An incentive or surcharge program tied to the health plan will implicate the EEOC, ADA, the Heath Insurance Portability and Accountability Act (HIPAA), and GINA rules for employer wellness programs. In that case, any offer of a financial reward in exchange for taking the vaccine will trigger GINA, HIPAA, and ADA compliance regulations for wellness programs tied to the group health plan (i.e. gift cards, cash rewards, etc.). Likewise, an incentive or surcharge program not tied to the health plan will likely still trigger ADA compliance.
Employers should proceed with caution regarding the thresholds for the financial award amount, since we do not have published rules (or any guidance) from the EEOC under the ADA. We do know that under the previous proposed wellness rules, the EEOC approved of de minimus rewards such as water bottles or key chains. In early February 2021, over 40 organizations signed on to a letter from the U.S. Chamber of Commerce to the EEOC requesting guidance from the EEOC regarding incentives. The EEOC has not yet responded.
Anecdotally, some of the more common incentives offered by employers include:
- Providing paid time off to get vaccinated. Consider providing employees/workers a set number of paid hours for each dose of a vaccine they receive (for those that require two doses) as well as potential recovery and travel time.
- Providing a small bonus, prize, or other financial incentive (i.e., gift cards, coupons, etc.) to employees/workers who get vaccinated.
- Covering the cost. While COVID-19 vaccines purchased by the government are available at no cost, some providers may charge an administration fee. Also consider covering out-of-pocket costs (such as transportation and daycare) for employees/workers who get vaccinated.
Another way to approach incentives may be to develop a group or department program. Group/department incentives and contests are a way an employer might create excitement and motivate interest in a vaccination effort. For instance, if a department reaches 90% vaccination rate, everyone in the department will enjoy a catered lunch, or a group reward of some sort. Generally, a group contest or incentive may not trigger regulatory obligations so long as the employer does not engage in employee medical inquiries.
I want to extend a HUGE thanks to Carrie for taking the time to share her knowledge and experience with us. COVID is a challenge and will continue to be as we move into the vaccine stage – and even beyond. Don’t forget that HUB International is maintaining a COVID FAQ. This is a 200+ question FAQ updated each week to consolidate the ever-changing and updated regulatory information across all aspects of employment including benefits, health and safety, and employee relations.
We’ve been dealing with COVID for over a year and we’re not done yet. I totally agree with Carrie’s comments that the vaccine rollout is an opportunity for organizations to show that they care. It’s an opportunity for organizations to show that the employee works for a caring culture and put together a plan that aligns with it.11