Latest Information: Employers' Guidelines for COVID-19 Vaccine Distribution
In the ongoing battle against the pandemic, employers are grappling with various questions concerning COVID-19 vaccination policies. Here's a breakdown of the latest guidance on these matters, addressing topics such as discrimination, wages, collective bargaining, safety, privacy, and general liability considerations.
Discrimination and Religious Beliefs
The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 apply to vaccination policies. Employers may require vaccinations without violating these acts if they can demonstrate that the requirement is job-related and supported by business necessity. However, employers must make exceptions for employees with sincerely held religious beliefs that prevent them from being vaccinated.
Wage and Hour Considerations
Employers may be required to compensate employees for time spent getting vaccinated if the vaccination is mandated by, or obtained at the direction of, the employer. Some states have broader requirements to reimburse employees for transportation costs incurred in getting vaccinated.
Collective Bargaining
In a unionized workplace, a vaccination program may be subject to collective bargaining.
Safety and Privacy
The EEOC's position is that the ADA's confidentiality requirement applies to information about an employee's vaccination status, regardless of how such information is obtained. This position is at odds with case law holding that the ADA's confidentiality provisions apply only to information obtained through a disability-related inquiry or medical examination.
HIPAA restricts the use and disclosure of certain individually identifiable health information, but it generally does not apply to employers. HIPAA may apply to the authorization for use or disclosure of employee vaccination information, particularly in employer-sponsored group health plans. Once information about employee vaccination status is in the employer's possession, HIPAA no longer applies to the employer and its maintenance of such information.
General Liability
The COVID-19 PREP Act declaration covers countermeasures to the virus, including the COVID-19 vaccine. This declaration provides immunity from liability under federal and state law to 'covered persons' for claims of loss caused by, arising out of, relating to, or resulting from the administration or use of 'covered countermeasures.'
Several U.S. states have enacted laws granting liability protections to private companies that offer or mandate COVID-19 vaccinations for their employees. The specific states are not listed in the provided search results.
Incentives and Adverse Reactions
Employers may offer vaccinations to employees' family members, but only if certain conditions are met, such as obtaining prior, knowing, voluntary, and written authorization from the family member and ensuring that all medical information obtained is kept confidential.
Employees may be entitled to time off because of an adverse reaction to, or side effect of, a vaccine, depending on the circumstances.
Employers may offer incentives to employees to get vaccinated, but the incentives should not be so substantial as to be coercive.
Regulatory Guidance
The Equal Employment Opportunity Commission, the U.S. Department of Labor, and the U.S. Department of Justice have issued guidance on various topics related to vaccination policies.
Employers should be aware of the National Labor Relations Act (NLRA) protections for employees who engage in concerted activities, such as expressing concerns about workplace safety or circulating a petition asking for greater safety protections.
Emergency Measures
During an emergency, employers may unilaterally implement changes to the terms and conditions of employment, but they must negotiate the effects of their actions prior to implementing the changes.
Genetic Information
The Genetic Information Nondiscrimination Act (GINA) does not apply to vaccinations of employees, but the same screening questions used for vaccinations are viewed by the EEOC as eliciting genetic information about an employee's family medical history.
OSHA recently stated that it will not require an employer to record worker side effects from a COVID-19 vaccine through May 2022, whether or not the employer mandates the vaccine.
In most states, employers have the right to require employees to get vaccinated as a condition of employment, subject to exceptions under antidiscrimination laws.
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