Winstead PC Shareholder Taylor White published the first article for his column in Texas Lawyer about labor and employment issues and trending topics. The article is titled “Best Practices and Considerations for Employers Regarding the COVID-19 Vaccine in the Workplace.” The article is below:
“With states individually rolling out the COVID-19 vaccine to residents, employers are, and should be, beginning to consider their options with respect to employee vaccinations. The Centers for Disease Control and Prevention (CDC) has previously recommended giving the COVID-19 vaccine in phases initially, as it relates to employees: (1) health care employees; then, (2) frontline essential employees, such as education workers, manufacturing workers, first responders, and food and agricultural workers; and then, (3) other essential workers, such as construction workers, finance workers, and transportation and logistics workers. Of course, ‘the goal is for everyone to be able to easily get a COVID-19 vaccine as soon as large quantities are available.’
With that in mind, employers should plan now for the issue of COVID-19 vaccinations in the workplace. The following are key questions employers should be considering:
Can an employer ask an employee whether the employee has obtained the COVID-19 vaccine?
Generally, yes. The Equal Employment Opportunity Commission (EEOC) says that an employer’s mere request that an employee show proof of receipt of a vaccine is not, in and of itself, an impermissible disability-related inquiry. But an employer should avoid singling out one employee over another with this inquiry and be cautious about asking follow-up questions that may elicit disability-related information. Such follow-up inquiries need to be ‘job-related and consistent with a business necessity’ or otherwise be related to the management of a ‘direct threat’ as defined by the Americans with Disabilities Act (ADA) (i.e., ‘significant risk of substantial harm to the health or safety of the individual or otherwise that cannot be eliminated or reduced by reasonable accommodation’).
Can an employer mandate that employees receive the COVID-19 vaccine?
Likely, yes. The EEOC has not expressly stated that an employer is permitted to require or mandate the vaccine, but the EEOC has implicitly recognized that an employer may do so under the ‘direct threat’ analysis and has outlined an employer’s obligations in the event it does so. Note again, an employer should avoid singling individuals out for mandatory vaccination—e.g., don’t mandate that only older workers receive the vaccine, etc. If an employer mandates that its employees get the vaccine, it should consider and document why it is mandating the vaccine in terms of employees creating a ‘significant risk of substantial harm to the health or safety’ to each other that ‘cannot be eliminated or reduced by reasonable accommodations,’ such as through remote work arrangements. An employer (i) may have to try to accommodate individuals who cannot take the vaccine due to covered disabilities, and/or sincerely held religious beliefs, absent an undue hardship; and (ii) may have to meet many other requirements/best practices if the employer administers or contracts with a third party to administer the vaccine to employees.
If an employer mandates the vaccine in the workplace, what should the employer consider in communicating with its employees about it?
Generally, an employer needs to (1) understand the need for appropriate employee communications; and (2) work with its supervisors and HR staff to understand the issues and educate its workforce about them now. Employees are understandably concerned about the vaccine due to the amount of conflicting information on news and social media outlets regarding the vaccine and the pandemic in general. Accordingly, an employer should take the time to communicate with its employees appropriately to assuage their fears if a vaccine is being mandated. The employer may provide guidance or fact sheets from official sources like the FDA (e.g., Moderna Fact Sheet, Pfizer-BioNTech Fact Sheet, Janssen Fact Sheet), CDC, or state agencies (e.g., Texas Department of State Health Services, etc.) regarding the vaccine. The employer may further encourage its employees generally to speak with their personal physicians and health care providers about their concerns—again, the employer should avoid singling out any particular employee. It may further provide information and general reminders to all employees concerning any Employee Assistance Program (EAP), such as fact sheets or the anonymous hotline. Employee fear is real and justified in these unprecedented circumstances, and the EAP may provide assistance to those employees experiencing fear. These conversations should happen now and in the coming weeks/months to make the actual vaccine administration process smoother when the vaccine is more widely available.
What issues arise generally when an employer wants to administer or implement the administration of the vaccine for its employees?
While an employer may administer the vaccine itself, the more likely scenario for many employers may be to contract with a third-party company to come onsite to provide the vaccinations to employees. Under these latter circumstances, the EEOC will still treat it as if the employer is administering the vaccine, meaning disability-related inquiries/pre-vaccination medical screening questions prior to the administration of the vaccine by the third party will be attributable to the employer itself. The employer should document that these disability-related screening inquiries are ‘job-related and consistent with business necessity.’ According to the EEOC, ‘an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the [pre-vaccination screening] questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.’ As a best practice, the employer should also be sure (1) to document its efforts to choose an appropriately credentialed third-party to administer the vaccine; and (2) to keep any medical information received or maintained by the employer regarding employees, whether related to the vaccine or otherwise, strictly confidential and maintained in files separate and apart from the employee’s other personnel records.
There are, certainly, many other questions employers may have or factual circumstances in the workplace involving COVID-19 and vaccinations. For that reason, it behooves employers to involve their senior management team, human resources department, and appropriate legal counsel to ensure it has assessed all issues that arise to implement best practices and meet its obligations.”
Reprinted with permission from Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org.
White is a member of Winstead’s Labor & Employment Practice Group. Throughout his career in private practice, he has served as a devoted resource for employers and managers facing workplace issues in courts and conference rooms. White regularly advises employers on requirements and best practices regarding discrimination, harassment, and retaliation claims under state and federal employment laws, and he often counsels clients on a myriad of litigation avoidance strategies. When in court, White is a zealous advocate on behalf of his clients for claims of breach of contract; employment-related torts; wage and hour violations; trades secrets misappropriation; restrictive covenant breaches; discrimination, harassment and retaliation issues; and, other state and federal law issues stemming from workplace disputes.