N.C. Gen.Stat. Ann. § 131E–79.2 (2017) (requiring hospitals to tell parents of newborns about pertussis disease and the available vaccine). Nat'l Inst. Advocates & Life Advocates v. Becerra, 138 S.Ct. 2361, 201 L.Ed.2d 835 (2018)
[I]n a 2009 letter of interpretation, OSHA previously said that employers that wished to require employees to receive a seasonal flu vaccine could do so, subject to certain exceptions.
OSHA emphasized that employees need to be properly informed of the benefits of the vaccinations. It clarified that if employees refuse the vaccine due to a reasonable belief that they have a medical condition creating a real danger of serious illness or death (for example, a serious reaction to the vaccine), they may be protected as a whistleblower under Section 11(c) of the Occupational Safety and Health Act (OSH Act).
Regarding the COVID-19 vaccine, there is some speculation in the legal community that OSHA may use the OSH Act’s so-called General Duty Clause to issue citations to employers that fail to offer COVID-19 vaccines.
- OSHA General Duty Clause29 U.S.C. 654(5)(a)(1) requires every employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees". This may be read as requiring that employers establish vaccination protocols intended to protect employees from exposure to harmful or deadly diseases.
Section 7 of the NLRA grants employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection.” This provision may protect the rights of employees who engage in concerted activities with regard to a mandatory workplace vaccine. Examples of protected activities could include protesting against a mandatory vaccination policy, organized office communications or flyers among coworkers concerning a vaccination mandate, or simply coworker discussions about the vaccine.
13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA). Equal Employment Opportunity Comm’n, EEOC Compliance Manual Section 12: Religious Discrimination 56-65 (2008), https://www.eeoc.gov/policy/docs/religion.pdf.
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. *As of the date this document is being issued, there is no vaccine available for COVID-19.
Cites 1997 opinion letter of the Department of Labor Wage and Hour Division:
[A]ttendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes, as would attendance at a licensing physical examination during or outside of normal working hours.
Concludes same would apply to mandatory COVID-19 testing.
Seem to think the answer is no. Discusses EEOC Guidance and FDA procedures, including streamlining in the EUA process, but does not note COVID-19-specific EUA process modifications. Notes Legarreta v. Fernando Macias, et al., Case 2:21-cv-00179 (DNM Feb. 28, 2021).
"Notwithstanding state or local regulations that provide otherwise, employers can generally make vaccinations a mandatory condition of employment so long as employers accommodate exemptions on the basis of a sincerely held religious belief or disability"; notes reticence of employers to do so.
Questions over incentives; employers should offer an alternative path to the incentive for non-vaccinating employees, "such as attending a COVID-19 training during working hours".
Wage and hour obligations; paying nonexempt employees to be vaccinated may by itself "trigger overtime or expense reimbursement obligations".
HIPAA nondiscrimination regulations: incentive can not be related to or paid out of employer's existing medical plan, or these regs are invoked. For such programs, "question as to whether the program would be considered a participatory program or an activity-only, health-contingent program". If so, incentive is limited to 30% of plan cost, and non-vaccinating must have some reasonable alternative to receive it.
EEOC implies yes, with Title VII and ADA accommodations
Employers who do the administering (likely in healthcare industry) must avoid disability-related questions unless "job-related and consistent with business necessity" (i.e. direct threat if not answered for purposes of vaccinating)
Affordable Care Act (ACA) requires group health plans/insurers to cover certain preventive care services without cost sharing.
CARES act required COVID-19 vaccination coverage "within 15 business days after a vaccine receives an “A” or “B” recommendation" from the United States Preventive Services Task Force (USPSTF), and within 15 days of ACIP recommendation and CDC adoption.
COVID-19 vaccines must be covered irrespective of whether the provider is in or out of network.
Cash incentives for receiving the vaccination "may qualify as nondiscretionary bonuses under the Fair Labor Standards Act (“FLSA”) and state law, and would therefore need to be calculated into a nonexempt employee’s regular rate of pay when calculating overtime compensation".
Non-vaccinating employees due to disability/religion should be offered an alternative means to obtain incentives.
Incentive program may qualify as a wellness program that "implicates HIPAA's non-discrimination provisions [or] GINA's prohibition against employers using genetic information to make decisions related to the terms, conditions, and privileges of employment".
Notes ADA/Title VII accommodation; FLSA compensability of time spent getting vaccinated; Worker's Comp/Civil Liability; wellness program may run afoul of EEOC guidelines.
Title III of the ADA (42 U.S.C. § 12102(1)) protects access to places of public accommodation for disabled consumers.
Owners must make reasonable accommodations for the disabled; if plaintiff proves reasonableness of accommodation, burden shifts to defendant to prove that it would render a "fundamental alteration", which is a "modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages or accommodations offered".
California Department of Fair Employment and Housing ("DFEH") released a COVID-19 employment FAQ largely tracking EEOC guidance in allowing employers to mandate COVID-19 vaccination
CO workplace health whistleblower protections could be invoked by an employee deeming mandatory vaccination unsafe; excludes protection for information dispensed "with reckless disregard for [its] truth or falsity".
CO law also prohibits retaliation against employees for lawful off-work advocacy, including anti-vaccine advocacy
CO religious protections are broad and apply to all employers irrespective of size
"employer-sponsored group health plans are paying for the full cost of the vaccines themselves, as well as the administration charges"
"affirmative obligation to maintain a safe workplace"
"legally pre-approved incentive program designs" have not been promulgated by agencies
balance is between incentives strong enough to encourage vaccination, but not so strong as to become coercive
max incentive under HIPAA is "30 percent of the total cost of employee-only coverage, or 30 percent of the total cost of coverage for employees and dependents"
In the 2022 case of Costello v. Fond du Lac Reservation, No. A22-0218 (Minn. App., August 15, 2022), an employee fired for nonvaccination was found to have been fired for misconduct and therefore not eligible for unemployment benefits.
Costello argues that her refusal to get the mandatory COVID-19 vaccine does not constitute employment misconduct because Fond Du Lac's mandatory vaccination policy is unreasonable. We disagree. In Potter v. St. Joseph's Med. Ctr., the relator was discharged from her position as a registered nurse after she refused to receive an influenza vaccination in violation of company policy. No. A18-0736, 2018 WL 6729836, at *1 (Minn.App. Dec. 24, 2018). On appeal, this court determined that "because it is a healthcare institution, [the employer] reasonably requires staff to get flu vaccinations for the maximum protection of patient health." Id. at *5 (quotation omitted). The court also noted that the employer's "vaccination policy provided exemption for those employees unable to be vaccinated for religious or medical reasons." Id. Thus, this court affirmed the ULJ's decision that the relator was ineligible for unemployment benefits because her refusal to comply with the employer's reasonable flu-vaccination mandate constituted disqualifying employment misconduct. Id.
Virginia 2021 SPECIAL SESSION I, HOUSE BILL NO. 1985: A BILL to amend and reenact § 65.2-402.1 of the Code of Virginia, relating to workers' compensation; presumption as to death or disability of health care providers from COVID-19:
2. The presumptions described in subsection B [of COVID-19 deaths being work related] shall not apply to any person offered by such person's employer a vaccine for the prevention of COVID-19 with an Emergency Use Authorization issued by the U.S. Food and Drug Administration, unless the person's physician determines in writing that the immunization would pose a significant risk to the person's health. Absent such written declaration, failure or refusal by a person subject to the provisions of this section to undergo such immunization shall disqualify the person from the presumptions described in subsection B.
Title VII; ADA; GINA; OSHA; ERISA; State/common law
Title VII - "sincerely held religious belief" = accommodation, unless "undue hardship" (more than de minimis cost/burden); may question religious nature/sincerity of objection.
ADA - "inquiries" must be job-related, accord with business necessity = accommodation, unless reasonable belief of "substantial risk of harm", or "undue hardship" (significant difficulty/expense)
Duration of risk
Nature/severity of harm
Likelihood of harm
Imminence of harm
GINA - can't request employee genetic information; EEOC says vaccine mandate does not implicate, but be careful when asking screening questions.
OSHA - no vaccination requirement at this time; §11(c) may protect non-vaccinating under whistleblower rights
ERISA - employer providing vaccine may create an ERISA plan, implicating obligations to cover other things; reporting requirement, Form 5500; make sure insurance covers that
Consider admin burden, legal risk, benefits
Must track compliance
Must manage accommodations
Take care to protect info
Continue masking/social distancing requirements
Denial of accommodation or inconsistent use of accommodations = possible litigation
Worker's Comp for adverse reactions
Benefits: Could reduce illness/absenteeism, put customers at ease
GINA/ADA information requests not implicated if employees sent to a non-contracted third party.
EEOC proposed rule: wellness programs must be "voluntary", incentives must be "de minimis". ADA/GINA also requires this.
Exclusion from workplace not necessarily the same as termination.
Under new administration, could be compensation for employers carrying out vaccination programs.
Offer to vaccination employee's families?
ERISA preemption - overrides some state and local laws.
Group Health Plans must cover costs of testing and vaccination.
Vaccination incentives may be taxed. Not if de minimis or an HSA contribution. Most incentives have been time off/days off. Yes, can give paid time off (which is taxable).
Based on proposed regs we do not know where the line is on incentives.
HIPAA Compliance - fact of vaccination not an inquiry.
France and Germany = employees can not mandate vaccines under any circumstances.
Survey: nearly half of employers are extending remote work through summer. Unlikely to mandate due to employee concerns.
Employers offering info; on-site vaccination; time off for vaccination
Companies with union employees must review collective bargaining agreements
Employer has no obligation to bargain over state-mandated vaccinations
"Management rights clause"; agreement may require employer to maintain health/safety of workforce
May need to bargain over which employees must be vaccinated; in what order; will it be on-site; incentives for vaccinations or penalties for nonvaccination
NLRB - no guidance as of 2/11/21; there is a precedent in flu vaccination; Virginia Mason came up again in 2011
Antivax issue: NLRA protects right of employees to contest changes to conditions of employment, including vaccination mandates
Assign a workplace coordinator for these issues; prepare a hazard assessment; identify measures to prevent spread
Protect workers at higher risk
System for communication both two and from employees
Cal. OSHA has imposed specific additional steps (as have some other states) incl. requiring a written COVID-19 remediation plan
Mich. OSHA - remote work is required when feasible; daily screenings/temp checks for onsite workers when feasible
Don't disclose employee health status to others
December 16 EEOC guidance is still controlling
Qualification standard - may be imposed by outside contracting party
Objective basis for questioning a claim for a religious accommodation would be knowledge of prior vaccines received without objection.
Do not unilaterally contact employee's place of worship
Potential area of coverage - pre-vaccination questions
Incentives may implicate state and federal laws, incl. ADA, Title VII, HIPPA (ACA), FLSA
Employer who offers a substantial incentive for receiving the vaccine must balance that with an equivalent incentive for non-vaccinating employees completing some alternative basis such as watching a 1-hour educational program on the vaccine.
Teresa Reuter, Erinn Rigney COVID-19 Vaccines Employment- Law Considerations for Health Care Employers
Most employers have not considered a mandate or don't know if they will implement
FDA COVID-19 EUA - guidance affirms recipients must be informed of a right to refuse
Particularly important in essential businesses/healthcare/manufacturing/high-risk employees
OSHA National Emphasis Program (NEP)
Focusing on largest concentrations of at-risk employees
Outreach, compliance assistance, reinforcement of anti-retaliation principles; targeted and unannounced inspections
OSHA January 2021 guidance promotes hazard assessment; publish guidance for non-English-speaking; keep infected out of workplace; protect workers who raise COVID-19 concerns from retaliation
A good thing if concerns are being raised
Particularly important around changes in policy
Nothing in OSHA guidance about mandates; previous guidance has allowed employers to offer vaccination, encouraged flu/H1N1 vaccination (indicating that healthcare employers could mandate)
January guidance suggests making COVID-19 available at no case; provide info/training on benefits/safety
Vaccinated employees will continue to follow the same protocols as unvaccinated
EEOC guidance does not distinguish EUA vaccines
Precedent exists for different treatment
Guidance raises ADA, Title VII, GINA
Vaccination not a medical exam under ADA - but pre-screening questions may be disability-related
must be job-related, consistent with business necessity
Employers may qualify that "an individual shall not pose a direct threat" to others in the workplace
NLRB adds that vaccine requirements may require bargaining
No COVID-19-specific NLRB guidance
Collective employee refusal to be vaccinated may qualify as "protected concerted activity"; liability for adverse employer action
Direct threat Framework = fact specific
Duration of risk, nature/severity of harm, likelihood of harm, imminence of harm
Employer can exclude employee from workplace if direct threat cannot be reduced to acceptable level without undue hardship
Employees may raise ameliorative measures already taken by employers to mitigate threats
Employers with multiple facilities may need to examine circumstances of each individually
Make sure to document assessment process with both OSHA and employee concerns in mind
Administering vaccine does not implicate GINA, but pre-screening questions may be
Therefore, if such questions are necessary, employer should request proof of vaccination rather than administering
Employers should caution employees not to provide genetic info
Managing accommodations - best practices, differences
ADA = must accommodate disables employees; must engage in "interactive process"
Accommodation must be related to "major life activity" limited by the disability, and that affects essential function of job
Employers often try to reasonably accommodate even borderline requests in the interests of avoiding controversy; this is recommended
Employers need not provide the accommodation specifically requested
Employers need not accommodate where this presents an undue hardship (high standard)
Proposed accommodation = significant difficulty/expense, would fundamentally alter nature of business
Take care to document in a way that supports employer decision
Accommodation must permit employee to perform essential functions of the job; need not allow employee to avoid essential functions (but think hard about what functions are really and enduringly essential)
Title VII
Must accommodate within reasonable limits
Employee must show: sincerely held belief; bona fide religious practice; conflict with employment requirement
May arise due to vaccine containing an agreement which religion prohibits consuming [not mentioned - alternative vaccine]
Need not be provided if accommodation would result in more than de minimis cost to employer
Best to have a team addressing accommodation requests consistently (treat similarly situated employees the same) [this will require training]
Post-vaccination considerations
Employers must keep employee medical info (including disability accommodation) confidential; separate from personnel files
Particularly important in small businesses (or businesses with small offices) for which it is easy to identify even anonymized people
Better for employer to signal non-vaccination status than to be liable for spread of COVID in the workplace
Health screenings should account for post-vaccination symptoms
No quarantine requirement for fully vaccinated asymptomatic individuals
Incentivization
States are passing laws to require employers to provide paid leave to employees for vaccination
Employer may voluntarily offer paid leave under FFCRA, for time to get and/or recover from vaccination
Incentive programs
Interesting variation - employer makes donation to charity in employee's name
EEOC says incentive regime could be a "wellness program" under EEOC guidance
says incentives should be "de minimis"; water bottle, small gift card
cautions against incentives that are so large they make employees feel coerced to vaccinate or disclose info
Monetary incentive may actually be de-incentivizing, signal danger/risk
EEOC-friendly alternatives = vacation holiday, focus on moral, post-vaccination activities
Best practices for structuring
Be careful not to aggressively push vaccination for those medically/religiously unable to be vaccinated
What resources are employers using to promote vaccination? Medical org materials? In-house materials?
Big question facing entities = mandatory or permissible (at least pending full approval of a vaccine)
Is a vaccination program truly necessary? Alternatives?
Can the program be limited by locale, department, worksite?
Would encouragement work better in company culture than a mandate?
Educate on efficacy/safety; train and engage; encourage participation
Prepare to manage accommodation requests; review existing forms; extend existing policies where possible
Interactive process; standardized for consistency, but flexible
Consider workforce, potential union/worker's rights issues
Nondiscriminatory/nonretaliatory infection control alternatives
Cover vaccine costs/offer on-site
Reasonable vaccination deadline per CDC guidance; designate employee to monitor compliance
Sheila Wiffins, Neville Bilmoria, Erin Duffy, Chris Durham
Both EEOC and OSHA have okayed mandatory vaccination policies, provided that there are exemptions
Disabilities under ADA
Religious
Employers should assume claim is sincere
State laws may limit; for example NJ bars religious exemptions for healthcare workers for flu
Doesn't need to be the employee's preferred accommodation
Employee who doesn't raise or qualify for an exemption and still refuses vaccination, can be fired
NLRB has held in the past that mandatory vaccination policy plainly affects conditions of employment
Provide notice to the union, opportunity to bargain
Union may have already waived right to bargain over this in management rights clause or zipper clause
Employer can require proof of vaccination from a healthcare provider
Have a GINA disclaimer stating that no genetic information is required
Can exclude unvaccinated employee from workplace if they pose a "direct threat"
"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".
Context matters (how much physical contact between other employees or customers)
If disability cannot be accommodated, other efforts must be considered
Employers should have a written policy, establish accommodations
Educate employees, work with them
Encourage, facilitate (make it part of your employee program), incentivize
Can start with a voluntary program, change that based on outcomes
Informational concerns
Keep med records separate
Pre-vaccination questions have been held disability-related, must have business necessity to ask for this
Seems so far that pre-vaccination questions do not implicate GINA
State/local orders must be followed until withdrawn
Employers providing vaccination - not happening now, due to lack of availability
Logistics, consent, product liability
Still widespread hesitance
Education and messaging is critical, tailor to demographics
Administration on-site
Through an occupational health office - but would have to register as a state-approved vaccination site
Partnering with an existing provider to provide offsite or provide onsite
Offsite vs onsite depends on workforce; availability of space to perform
Bring in providers, have EMS on site in case of adverse reaction
How to insure receipt of second dose of vaccine - can be done contractually as well
Assuming a third-party contract
General commercial terms
Qualifications of individuals administering (clinicians are duly licensed to administer the vaccine) - but for COVID-19 there have been many waivers, so may want to set a floor of who can administer in the contract (e.g. LPN)
Provider properly educates employees on the vaccine; obtain proper informed consent
To make good faith efforts to obtain vaccine to administer first and second doses
Assumption of risk for their own personnel coming to your location to administer vaccines
Obligated to maintain vaccines properly
Govern what is to be done with excess doses (standby list for employees to be vaccinated)
Payment mechanisms (daily? hourly? bill insurance?)
Termination provisions in case of recall/EUA revocation
Recommend that clinic-sponsoring employers have separate employee consent
Note that it's voluntary; does not change employee status; no contract arising from provision of clinic
Acknowledge education on the vaccine; employer not responsible for adverse event/waiver of liability
Potential liabilities = exemption-related discrimination; negligence for failure to ensure vaccinated workforce; informed consent issues
PREP Act may provide some liability protection, if employer is arranging a countermeasure (clear that it applies to provider, but not clear as to employers)
Workplace issues going forward (mostly telehealth concerns, not specifically vaccine-related)
“Moreover, this Court has held that ‘when an inmate is fully vaccinated against COVID-19, compassionate release motions are unlikely to be granted even when a defendant has underlying health conditions.'” United States v. Greene, No. 06-cr-312 (RCL), 2022 WL 3354745, at *4 (D.D.C. Aug. 12, 2022) (quoting Wyche, 2022 WL 2643568, at *5). Mr. Bogle has received two doses of the Modema COVID-19 vaccine. Gov't Opp'n at 18. Additionally, Mr. Bogle received a booster vaccine this past spring. Id. Accordingly, his full vaccination status further counsels rejecting his motion. See Martinez, 2021 WL 2322456, at *2 (explaining that although the defendant has underlying conditions “that could increase his risk of severe illness” from COVID-19, his full vaccination status “mitigates that risk almost entirely”); Comparative Effectiveness of Moderna, Pfizer-BioNTech, and Janssen (Johnson & Johnson) Vaccines in Preventing COVID-19 Hospitalizations Among Adults Without Immunocompromising Conditions, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/mmwr/volumes/70/wr/mm7038e1.htm (last visited Oct. 4, 2022).
Beyond vaccination, Mr. Bogle has already contracted and recovered from COVID-19. Gov't Opp'n at 18. If an inmate has fully recovered from a past COVID-19 infection, it weighs strongly against finding current extraordinary and compelling circumstances. See Winston, 2021 WL 2592959, at *2 (denying compassionate release, partly because defendant had already contracted and fully recovered from COVID-19 without serious complications). Mr. Bogle argues that he still faces a threat of being reinfected with COVID-19. Def.'s Reply at 5. But the possibility of reinfection does not create an extraordinary and compelling circumstance, especially now that Mr. Bogle is fully vaccinated. See Wyche, 2022 WL 2643568, at *3-*4 (denying compassionate release for fully vaccinated defendant who contracted COVID-19 twice).
United States v. Bogle, No. 95-cr-298 (RCL) (D. D.C., October 17, 2022)