Organizations and COVID Vaccines: What to Know

learn about COVID vaccines in the workplace

Estimated reading time: 11 minutes

A lot has been going on lately when it comes to COVID vaccines and the workplace. It’s important for organizations to stay on top of the decisions that are being made – or not being made – at a federal and state level. 

As we continue to hear about decreased COVID cases, I’m sure organizations will want to start planning for employees to return to the office. We’re already seeing articles about it in the news. Ultimately, organizations need to provide employees with a safe work environment.

Thankfully, when I reached out to my friend and employment law attorney Carrie Cherveny to see if she would give us an update, she said “yes”. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, she 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 been helping us throughout the pandemic to understand the matters that organizations need to consider.

And as you know, Carrie is a lawyer. Please don’t forget that 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.

Nothing will give a worse impression to a prospective employee than not walking and talking your own walk and talk. It will have them questioning everything you say and could be a deciding factor in their joining the company.

– HUB International Attorney Carrie Cherveny

Carrie, we talked about the OSHA Vaccination Standard a couple of months ago. What’s changed since then?

[Cherveny] On January 17, 2022, the U.S. Supreme Court ruled that the Centers for Medicare and Medicaid Services (CMS) could move forward with its vaccine mandate for healthcare employers that accept payment from CMS.

On the same day it also issued a ‘stay’ against the Occupational Safety and Health Administration (OSHA) Private Employer emergency temporary standard (ETS). Consequently, on January 25, 2022, OSHA put to rest all concerns about the Private Employer ETS as we knew it when it permanently withdrew the ETS. However, OSHA cautioned:

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3). 

This means that OSHA will continue to seek a permanent rule requiring private employers to mandate COVID-19 vaccines. OSHA will likely narrowly tailor the rule to specific industries: “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.” 

So as of this moment, vaccine mandates for healthcare employers that accept Medicare and Medicaid is in effect. Are there any other proposals that employers should be aware of?

[Cherveny] The Biden Administration issued two executive orders: one applied to federal contractors and the second to federal employers – both are under federal injunctions:

The Federal Contractor Vaccine Mandate – Executive Order – Executive Order 14042 compels each business contracting with the federal government to require its employees to be vaccinated or lose its contract. After much legal activity, the Eleventh Circuit upheld a nationwide injunction of the federal contractor vaccine mandate. This means that (for now) the federal government cannot require vaccine mandates for employees of federal contractors. The federal contractor vaccine mandate injunction has been appealed and will likely end up in front of the Supreme Court. 

The Federal Employer Vaccine Mandate – Executive Order – Executive Order 14043 requires federal employees to be fully vaccinated against COVID-19 (with exemptions available for health or religious reasons) or lose their jobs. On Friday, January 21, 2022, a federal court in Texas issued a nationwide injunction prohibiting the enforcement of the federal employer vaccine mandate. This means that the federal government cannot require federal employers to mandate the COVID-19 vaccine for their employees. It is likely that this decision will also be appealed to the Supreme Court. 

I understand that the issue of whether the government can require vaccines is being debated. However, if my organization still wants to require vaccinations, can they? 

[Cherveny] Under federal laws, employers may require employees to receive the COVID-19 vaccine. However, there are specific and certain limitations. Employer vaccination policies are subject to various significant federal laws: (1) the Americans with Disabilities Act (ADA); (2) Title VII of the Civil Rights act of 1964 – Religious Discrimination; and (3) the Pregnancy Discrimination Act. As a threshold matter, employers must ensure that the rationale requiring vaccinations is based upon objective facts, tied to employees’ job descriptions, and administered consistently.

If an organization is thinking about moving forward with a mandatory vaccine program, can you share with us a couple of things they need to consider?

[Cherveny] Mandatory vaccine programs are not all created equal. There seems to be essentially two approaches to a mandatory vaccine program:

  1. The Purist: employer requires all candidates and employees to become vaccinated by a certain date or within a specified timeframe. Failure to become vaccinated results in withdrawal of offer of employment or termination of employment unless the individual is eligible for an exception under state and/or federal law. 
  2. The Hybrid: employer requires all candidates and employees to become vaccinated by a certain date or within a specified timeframe. Employees that fail to become vaccinated will retain employment but will be subject to greater safety scrutiny and standards including regular COVID-19 testing.

However, under certain state laws, employers may be limited in their ability to implement vaccine mandate programs. Employers should be mindful of the state and local laws regulating vaccination mandates. Some states have implemented laws prohibiting or severely restricting private employers’ vaccines mandate programs. Violators of the state laws may face litigation and/or penalties. For example, in Florida, private employers may require employee vaccinations, but the policy must include the following exemptions for medical reasons, religious reasons, proof of COVID-19 immunity, periodic testing at no cost to the employee, and agreement to use personal protective equipment (PPE) such as masks or face coverings. (Editor’s Note: The Florida Attorney General has a Private Employer Vaccine Mandate Program website.) 

Conversely, in Tennessee Government, schools, and local education employers may not implement a mandatory vaccine program. Private employers may require vaccines, but restrictions apply. Employers may not require proof of vaccination from their employees or customers or take adverse action for not providing the proof of vaccination. The law provides for a private cause of action.

And out of curiosity, was there anything in the Supreme Court ruling prohibiting health insurance surcharges? We talked about health insurance surcharges in a previous article. 

[Cherveny] Employers that choose to offer voluntary vaccination incentives to employees have a number of plan design decisions to make – each of these decisions may make the incentive program particularly complicated or more streamlined and straightforward. Employers should ensure that they memorialize their vaccine program in a written policy that they distribute to all employees.

As threshold matter, employees with a health condition that is considered a ‘disability’ under the ADA may not be able to receive the vaccine and may require an accommodation to ‘remain whole’ and receive the employer’s incentive. If an employer learns that an employee may have a qualified medical condition that interferes with their ability to receive the vaccine, it should engage in the interactive process to determine a reasonable accommodation. An example of a reasonable accommodation may include requiring the employee to complete a special COVID-19 safety course to earn the incentive.

Program design will have a significant impact on the employer’s incentive program. For example, if the employer chooses to administer the vaccines onsite, but the EEOC warns that the incentive may not be ‘substantial’ or ‘coercive’. Employers offering onsite vaccines should proceed with caution with respect to the size of the incentive and should confer with employment counsel. 

Conversely, an employer may offer an incentive of any value and not limited by the ADA if: 

Employers must decide if they will use their program as a carrot or a stick. In other words, will the program reward employees that become vaccinated or will it punish employees who remain unvaccinated. Creating vaccine incentive programs can be tricky. At HUB, we recommend that employers proceed with caution and work with outside counsel. HUB has created an “Employer Guide to Vaccine Programs” to assist employers with decision making. 

Employers must always be sure to safeguard the employee’s medical information. Like we’ve spoken about in the past, employee medical information is confidential under the ADA and must be held in a separate and secure file. Only those who ‘need to know’ may know the employee’s medical information (and need to know is construed very narrowly). 

While we’re talking about vaccines, one of the aspects of vaccinations that we haven’t talked about is recruitment. Is there a best practice for organizations when it comes to communicating their position on vaccinations during the hiring process? If so, what is it?

[Cherveny] Two things come to mind. The first is communicate with absolute clarity as to what the policy and expectation is for all employees who join the firm. And if there is not a policy to align with for communication, the company should craft one ASAP. Of course, in this environment there will be changes, exceptions, and last-minute pivots. But the clarity of the policy expectation during the hiring process is what a candidate is expecting and due. 

The second is, be sure this policy and the guidelines are being followed. Especially by company leadership. Nothing will give a worse impression to a prospective employee than not walking and talking your own walk and talk. It will have them questioning everything you say and could be a deciding factor in their joining the company.

If an organization doesn’t openly disclose their vaccination position, is it okay for candidates to ask? Why or why not? If it’s okay, how should candidates phrase their questions to accurately determine if it’s safe to accept a position?

[Cherveny] Perfectly acceptable. I wouldn’t caution anyone about asking a potential employer about salary, expected hours, working conditions and the like. Same with vaccine policy. Asking the question can start with the obvious “Being the way the work world has changed due to COVID, can you give me a sense of the company’s approach of managing things?” It will help to get first a general lay of the land as to work from home and hybrid policy, safety measures in place, and those are a natural Segway into company vaccination position.

Also, get clarity about potential client or customer policies. If I am working onsite at a client what is their policy? What would be the impact for non-compliance? And if they come to our office for a meeting, will they be required to abide by ours? 

Last question. I know that organizations are getting bombarded with information right now. What are 1-2 things they should be focusing on when it comes to employee health and safety?

[Cherveny] First of all, state and local laws are of paramount importance now that most of the federal regulatory efforts are stalled or over (for now). Employers must be sure to pay attention to state and local laws including, for example, those that address masks, vaccines (i.e., mandates, limitations, and entry requirements), gatherings (i.e., prohibitions, limitations, and safety requirements), and post COVID exposure and/or diagnosis protocols. 

Next, organizations need to focus on health and safety. At the beginning of COVID employers were laser-focused on health and safety. The employer’s safety protocols are an essential tool to help reduce the community spread of COVID-19 in the workplace, prevent and defend against lawsuits, and demonstrate compliance with OSHA safety requirements. 

I cannot begin to thank Carrie enough for sharing her expertise and knowledge with us. Don’t forget to download the “Employer Guide to Vaccine Programs” that Carrie mentioned earlier in our conversation. 

I know there’s a lot of information to digest here. It might take reading it a couple of times to take it all in. But the information is important to the health and safety of the workplace. And that directly impacts employee recruiting and retention. One of my big takeaways in this conversation with Carrie is that organizations need to have a clear opinion about vaccines. Even if the organization isn’t going to mandate vaccines, HR and the management team need to be able to clearly explain their position and process. Candidates and employees will want to know. A vague, poorly communicated response could have negative consequences for the organization’s recruitment and retention strategy.

Image captured by Sharlyn Lauby after speaking at the SHRM Annual Conference in Las Vegas, NV

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