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Editor's Note: As Covid-19 vaccines become widely available, employers must consider how to address employee vaccination status. This checklist includes factors for employers to consider before implementing a vaccine policy, including any policy that encourages employees to get vaccinated, offers incentives, and/or provides paid time off for employees to get vaccinated. For a checklist of factors addressing employer requirements for employee vaccination, see Considerations for Employer-mandated Covid-19 Vaccination Programs.
• Employers are not required to implement vaccination policies. However, a policy can ease some of the uncertainty facing workers preparing to return to their worksite.
• Policies should clearly communicate employer practices and expectations and include a description of how employees can get more information.
• Employers that do implement vaccination policies should consider the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Occupational Safety and Health Act, and the Employee Retirement Income Security Act (ERISA) along with relevant state and local laws when creating and implementing policies.
Comment: At least one state has enacted a law that prohibits employers from discriminating against workers based on their Covid-19 vaccination status. See State Comparison Chart: Lawful Activities.
• Employers should consider providing information, including links to relevant government websites, to help employees understand vaccine safety, how to get vaccinated, and post-vaccination recommendations.
• Links to include:
i. The FDA's Emergency Use Authorization for Vaccines Explained
ii. The CDC's Covid-19 Vaccination Information Page
• In general under the ADA, employers may only administer medical examinations that are job-related and consistent with medical necessity.
• The screening questions asked before vaccinations are considered medical examinations under the ADA, but employers that offer voluntary vaccinations do not have to comply with the job-related/business necessity requirement.
• If employers administer vaccines or contract with a third party to administer vaccines, employers cannot not retaliate against, intimidate, or threaten employees who refuse to answer medical screening questions. See 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d) (see Smart Code® for the latest cases); EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
• State laws can impose different or additional requirements on medical examinations. See State Chart Builder: Medical Exams and Tests.
Comment: If employees are administered a vaccine by a third party that does not have a contract with the employer, the ADA provisions related to health examinations do not apply. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Although the Covid-19 vaccines are considered safe, there have been some documented adverse reactions. See CDC's COVID-19 Vaccines and Allergic Reactions. Workers who are injured may be entitled to workers’ compensation benefits, which are governed by state law. See State Chart Builder: Worker's Compensation.
• In certain situations, employer-provided vaccine programs can qualify as a benefit plan under ERISA. ERISA plans are subject to reporting and disclosure among additional requirements. See 29 U.S.C. § 1002. For more information about ERISA compliance, see ERISA Compliance Quick Checklist.
• Generally, employers can offer incentives to employees who voluntarily receive a Covid-19 vaccination or provide proof or documentation that they have received a Covid-19 vaccination. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (K.16. to K21).
• However, employers that administer vaccines to their workers, such as through a wellness program or vaccine program, must ensure that incentives are not coercive. Incentives that are too desirable can make employees to feel pressured to disclose private health information that is protect by the Americans with Disabilities Act. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (K.16. to K21).
Comment: The regulations regarding wellness plan incentives are still evolving. In early 2021, the EEOC issued proposed regulations that would limit the value of any incentives to a “de minimis” value, such as water bottles and low-value gift cards. Those regulations, which held that high-value incentives could be coercive, are currently on hold pending review by the Biden administration.
A 2016 regulation that limited wellness plan incentives to 30% of the cost of self-only coverage under the employer's health plan was struck down. See AARP v. EEOC, 267 F. Supp. 3d 14 (D.D.C. 2017).
Existing wellness plan guidance requires that employers provide alternatives for employees who are unable to get vaccinations because of disability. For example, an employee could be allowed to undergo additional safety training to receive the incentive.
Although the regulations are silent on religious accommodations, Title VII requires employers to provide accommodation for employees’ religious beliefs and employers should consider offering alternatives for employees who refuse vaccinations for religious reasons.
• Unlike incentives offered for employer-provided vaccinations, incentives offered for proof of third-party vaccination, such as vaccination by a doctor or pharmacy, are not subject to any value limitation. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (K.16. to K21). Employers that are subject to the ADA, Title VII, or similar state or local laws may be required to provide accommodations or alternative means of compliance for employees who are unable to get vaccinated because of a disability or unwilling to get vaccinated because of a religious belief. See State Chart Builder: Reasonable Accommodations; State Chart Builder: Religious Discrimination.
• Incentives to family members: Employers can offer incentives to employees who voluntarily provide proof that a family member received a Covid-19 vaccine from a third party. However, employers cannot offer incentives to encourage employees’ families to receive employer-provided vaccines. Pre-vaccination screening involves a person's medical history and the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees in exchange for their family medical history. See 42 U.S.C. § 2000ff-1; EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (K.16. to K21).
• Employers can require workers to provide proof of vaccination. Although disability-related inquiries are generally prohibited under the ADA, the EEOC released guidance clarifying that requiring proof of vaccination is not a medical inquiry and is permitted under the law. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
• Employers must keep all information obtained from employees about their health or vaccination status confidential. Any files or records of workers’ vaccination status must be maintained separately from employee personnel records. See EEOC's Pandemic Preparedness in the Workplace and the Americans With Disabilities Act; 29 C.F.R. § 1630.14(c)(1).