Can I Ask Employees to Get a COVID Vaccine?
The FDA has approved Pfizer’s COVID-19 vaccine, and Moderna’s vaccine will likely be approved by the time you read this article. The scientific community has outperformed expectations by creating vaccines within a year of identifying a new and deadly virus.
So far, these vaccines are proving to be mostly safe and quite effective. The entire world eagerly awaits the widespread distribution of these vaccines, which promise to save millions of people. In the U.S. alone, COVID-19 deaths have spiked up to 3,000-plus a day with over 300,000 total deaths. To say these vaccines represent salvation is not an exaggeration.
[Video] Can I require my employees to take the COVID vaccine? Watch here.
State of the COVID-19 Vaccines
The Pfizer vaccine has 95 percent efficacy 28 days after the first of two required doses. Great Britain and the United States are already vaccinating thousands of their citizens with the Pfizer offering. So far, there have been only a few serious adverse reactions from patients with a history of extreme allergies.
Experts expect millions of doses of the Pfizer vaccine to reach citizens in the next few weeks. The company has already shipped 2.9 million doses and has millions more stored and ready to ship. Some shipments have been delayed due to miscommunication between the company and the government.
In addition, the FDA is in the process of approving Moderna’s vaccine. The government has already purchased the rights to 200 million doses of their offering, which has 94.1 percent efficacy against contracting COVID-19 and 100 percent against severe disease, according to Phase 3 trials. Moderna’s vaccine is also easier to distribute than Pfizer’s since it only requires temperatures of minus 20 degrees Celsius to store. Pfizer’s requires minus 70 degrees Celsius, which means special freezing units are necessary.
Other vaccines are in the pipeline, but Pfizer and Moderna’s speed may limit their success. Also, these other vaccines may not meet the efficacy level of the Pfizer and Moderna offerings. Although it will take months to vaccinate most Americans, there is truly a light at the end of this dark winter. But you must prepare for your own vaccination protocol if you haven’t already. The knowledgeable team at HR for Health can advise you on this issue.
The Order of COVID-19 Vaccine Recipients
On December 1, an independent panel that advises the CDC made its recommendations for vaccine distribution. They suggested the following order:
- Healthcare workers
- Elderly living in long-term care facilities
- Essential workers (education, transportation manufacturing, food and agriculture, emergency response, etc.)
- Adults at high risk due to other medical conditions
- Adults over 65
Although individual states do not have to follow this plan, most probably will with some modifications depending on their unique circumstances. For instance, COVID-19 hit Arkansas’ poultry industry particularly hard, so their state government may allow those employees early access to the vaccine. Some other states may move people over 75 to the head of the line. Also, older healthcare workers or those with serious medical conditions may receive the vaccine first in their group.
Individuals who want to check their place in line can use this New York Times COVID-19 vaccine calculator to get an idea of where they stand in their state.
Employer COVID-19 Vaccine Policy
As an employer, you must have questions about establishing your own vaccination policy. Healthcare practices, in particular, need to be stringent about their patients’ safety. You certainly want to vaccinate all of your employees, but can you require them to take the vaccine? Precedent and new EEOC guidelines say that you can make vaccination a requirement.
On December 16, the EEOC offered updated guidance for the ADA, the Rehabilitation Act and other EEO laws. These updates include the following:
- The COVID-19 vaccinations do not constitute an ADA medical examination so the rule about that provision does not apply in this instance.
- Any prescreening health questions you ask employees before vaccinating them do fall under ADA rules since they are likely to reveal disabilities. That means the questions must be “job-related and consistent with business necessity.” If the employee refuses to answer these screening questions and you decide not to administer the vaccine, you cannot retaliate against them. When a third-party, such as a pharmacy, administers the vaccine, the rules for prescreening questions do not apply to you. We recommend that you send your employees to a third-party provider to avoid the risk of their asking questions that are outside of the ADA regulations.
- You may ask employees to show proof of vaccination without ADA concerns, but this proof should not include any other medical information, only information regarding if they received the COVID-19 vaccine or not. If you ask them why they were not vaccinated, you must follow the “job-related and consistent with business necessity” standard.
- You may have a qualification standard for employees who say they cannot receive the vaccine due to a disability. If your process “screens out” employees with disabilities, you have to show that these individuals pose a direct threat to the workplace. In that case, you must make accommodations to keep the employees working without harming others, if at all possible, such as providing more PPE, social distancing, etc. If that step is not possible, you may be able to exclude them from the workplace but only as a last resort. Keep in mind that this process is done on a case-by-case basis, and excluding employees from the workplace does not mean you can terminate them.
- If you have employees with religious beliefs against the vaccination, you must honor those beliefs with reasonable accommodations unless it poses “undue hardship” on your business. This particular provision is tricky and may require that you seek additional guidance from the EEOC.
Additional Vaccination Guidance
The National Law Review recently weighed in on this issue and urged employers to be cautious with this policy in certain circumstances. First, if you have any collective bargaining agreements with unions or other employee organizations in force, you need to carefully study the terms to make certain your vaccination policy does not violate them.
Secondly, they urge employers to honor the Equal Employment Opportunity Commission (EEOC) provisions that protect those with medical or religious objections to the COVID-19 vaccine injections. To protect your practice, set up HR procedures now to document and deal with these exceptions.
Some employees without special circumstances may be averse to taking the vaccines. Currently, only 63 percent of Americans are willing to take the vaccine, up significantly from several months ago. Some healthcare workers, including nurses, have differing opinions on mandatory vaccinations. This issue may be controversial at your practice. But you do have the right to make the policy mandatory with these few exceptions.
The past year has been difficult for everyone, but healthcare practices have been under incredible pressure. You have worked long hours and fought to maintain your practice while providing the best care possible. Finally, there is some good news on the COVID-19 battle for providers of all types, including general practitioners, dentists, radiologists, and other specialists.
You will have to carefully consider your policies and put your own procedures into place to vaccinate your team. Healthcare employees are at the top of most lists to receive the vaccine, but not all will want to get the shots. You can make it a condition of employment, however, as long as you follow ADA and EEOC regulations, which can be tricky. Plus, those in the healthcare industry have a greater responsibility to stop the spread than other industries.
If you need help with these difficult policy choices, contact HR for Health. Their expert staff can provide current information about government vaccination policies and procedures. And you don’t have to wait long for information. The experts at HR for Health will answer your questions as soon as possible. Vaccines are almost here. Reach out today and schedule a call.
HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices.
Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services.