Latest Information: Employer's Guide to the Distribution of COVID-19 Vaccines

In the ongoing fight against the COVID-19 pandemic, many employers are considering implementing vaccination policies for their workforce. Here's a breakdown of key factors to consider when developing such a policy.

Firstly, it's important to note that HIPAA (Health Insurance Portability and Accountability Act) may apply to employee vaccinations, particularly if vaccines are offered as a benefit through an employer-sponsored group health plan. If vaccination information is obtained, HIPAA no longer applies to the employer's maintenance of such information.

The U.S. Department of Justice has stated that employers can require employees to get vaccinated for COVID-19, subject to exceptions under antidiscrimination laws. However, employers may be required to reimburse employees for the cost of mandatory vaccinations in some states.

When it comes to unionized workforces, employers must bargain with the union over the terms and conditions of employment regarding vaccination policies. The duty to bargain may be excused in some circumstances due to the pandemic, but it is not yet clear whether new guidance will excuse vaccination programs from the duty to bargain.

The National Labor Relations Act (NLRA) protects employees from interference with concerted activities, including expressing concerns about workplace safety, circulating a petition asking for greater safety protections, or discussing vaccinations in connection with work.

Title VII of the Civil Rights Act of 1964 and various state laws prohibit discrimination based on religion, and employers may need to make exceptions to mandatory vaccination policies for employees with sincerely held religious beliefs that prevent them from being vaccinated.

The Americans with Disabilities Act (ADA) does not generally prevent employers from implementing a vaccine mandate for their workforce, but employers must be mindful of requirements for accommodations for employees with disabilities. The EEOC recommends that employers assume a request for religious accommodation is legitimate unless there is an objective basis for questioning the sincerity of the belief.

Employers may offer incentives to encourage employees to get vaccinated, but incentives must not be so substantial as to be coercive. Under federal law, employers are not required to pay for mandatory vaccinations, but they may be required to pay for associated transportation costs in some states.

When it comes to confidentiality, there is conflicting authority regarding whether an employee's vaccination status must be kept confidential. The EEOC takes the position that the ADA's confidentiality requirement applies to information about an employee's vaccination status, but this is at odds with case law.

The Public Readiness and Emergency Preparedness Act (PREP Act) provides immunity from liability for "covered persons" who administer or use covered countermeasures, including the COVID-19 vaccine. PREP Act immunity may extend to private employers that carry out vaccination programs, but it is unclear whether this would extend to a private employer sponsoring a vaccination clinic run by a third-party vendor.

The terms of a collective bargaining agreement could restrict an employer's ability to mandate vaccination in a unionized workplace. A written policy for a vaccination program should clearly define the positions or locations to which the policy applies, requirements of affected employees, and consequences of not satisfying those requirements.

OSHA's Emergency Temporary Standard (ETS) requires covered employers to provide paid leave for recovery from vaccination side effects. The value of vaccination incentives is not typically included in the regular rate when calculating overtime pay.

It's worth noting that only the federal state of Bavaria is explicitly documented as having issued guidelines or legal mandates regarding COVID-19 vaccinations for employees. Other states have not been specifically mentioned with such mandates for employers to enforce precaution or vaccination actions.

Employers should carefully consider potential vaccination programs in consultation with counsel, taking into account the specific needs of their workforce, customers, and operations. While vaccines offer a promising path forward, it's crucial to remember that other safety measures such as masks and social distancing may still be needed, depending on the state of the pandemic and the activities occurring at the particular workplace.

Finally, employers should continue to pay close attention to the recommendations of the CDC and other official public health sources for the most up-to-date guidance on how to control the spread of the virus in the workplace.