Small Business Advisory Council - Feb. 23, 2021 - Boise Metro Chamber

1. parsonsbehle.com
SMALL BUSINESS ADVISORY COUNCIL
COVID-19 Vaccinations and the Workplace
FEB. 23, 2021, Noon - 1 PM MST

2. 2
Parsons Behle & Latimer’s Covid-19 Task Force
 Previous phases of this prolonged
COVID response focused on:
o Making a safe workplace through
mitigation
• distancing, remote and virtual
environments
• workplace screening for illness;
testing
• handling sensitive health
information
o Re-opening your business

3. 3
Idaho COVID Case and Vaccination Statistics as of 2/20/21
United States (early March 2020) 100 confirmed cases; 6 confirmed deaths
United States – over 28 million Covid-19 cases; over 500,000 deaths
Idaho – Number Immunized – First Dose: 210,228, Second Dose: 86,701
Welcome to Novel Coronavirus (COVID-19) (idaho.gov)
Total Cases
(as of 2/20/2021)
Total Deaths
(as of 2/20/2021)
169,180 1,826

4. 4
Why encourage or mandate vaccinate?
 Current Covid response phase is
vaccination:
o How does your workplace vaccination
policy fit with your broader business
objectives of maintaining operations?
 There is risk in having a positive
case of Covid-19 at your
workplace;
o the amount of risk will vary by
industry, location, and workplace
 Vaccines are now an additional
layer of protection
o They don’t replace all of the other
layers!

5. 5
What laws apply? What else is relevant?
Federal Statutes & Guidance
 ADA
 Pregnancy Discrimination Act (PDA)
 Genetic Information Nondiscrimination Act (GINA)
 Title VII
 EEOC Pandemic Guidance
 OSHA Letter Opinion(s)
 OSHA Whistleblower protections
 ERISA
 CDC Guidance
Other
 State Law on vaccinations
 Covid-19 liability laws
 local public health guidelines
 workers’ compensation statutes
 Public policy, public opinion, anti-vaccination
movement

6. 6
OSHA General Duty Clause & New 2021 Guidance
 Why encourage or impose vaccinations?
o OSHA’s General Duty Clause:
• requires an employer provide a workplace free from recognized hazards likely to cause
death or serious physical harm.
o OSHA Guidance posted January 29, 2021:
• The most effective Covid-19 prevention programs include:
– Making a Covid-19 vaccine available at no cost to all eligible employees (provide information &
training on the benefits and safety of vaccinations)
– No distinction between workers who are vaccinated & those who are not (& all must continue to
follow protective measures because at this time, not evidence that these vaccines prevent person to
person transmission)

7. 7
(2009) OSHA on pandemic vaccinations
 Letter re whether a health industry employer may mandate flu shot
 OSHA:
o OSHA expects facilities to perform a risk assessment of their workplace
o OSHA encourages employers to offer the seasonal and H1N1 vaccines.
o Employees need to be properly informed of the benefit of the vaccinations.
o OSHA does not require employees to take the vaccines
o An employer may require vaccines (healthcare industry scenario)
o Beware of retaliation claims by employees with medical conditions – the
employees may have whistleblower protections.

8. 8
Your organization’s vaccination strategy is subject
to public health policies and guidance
 CDC Advisory Committee on Immunization Practices (ACIP)
o Categories of Essential Workers | COVID-19 Vaccination | CDC
 Idaho CVAC sets vaccine distribution timelines
 Many distribution prioritizations are TBD.
 NOTE: prioritized employer groups are next in line; contact any trade
or employer association for information
 Consider using a “strike team” or closed Point of Dispensing (POD) if
you are part of a critical busines sector, or large employee population

9. 9
Vaccine Provider Options
 (At Least) Two Types of “Voluntary” Vaccination Programs
o Offering/administering the vaccine:
o Encouraging/tracking the vaccine
 Whether your policy is mandatory or voluntary, you can:
o Connect with local public health to inquire about availability for your employees
o Contact vaccine providers directly for availability: provider_level_performance_vPublish -
Idaho Division of Public Health | Tableau Public
• hospital providers,
• primary care centers,
• pharmacies, etc.

10. 10
What about verification?
 Health districts, departments, and
healthcare systems may interpret
guidance differently, each provider may
even do so differently
 How will you interface with the priority
group policies once they are established?
 Will you be expected to provide
employees with verification to certify that
they are in a priority group if employees
seek vaccinations on their own?
 Beware of potential PR risk

11. 11
EEOC Guidance, 12/16/20
 If only encouraging the vaccine & tracking who has been vaccinated,
o EEOC advisory: this is not a disability-related inquiry under the ADA:
• Asking employees to provide proof of their vaccination
 If only encouraging the vaccine & tracking who has been vaccinated,
o Ask for proof of vaccination
o Request that your employee not provide any other medical information
with the vaccination record.
o Be aware you may also inadvertently receive GINA (Genetic Information Non-
Disclosure Act) information if employees turn in their entire medical record
visit.

12. 12
EEOC Guidance, 12/16/20
 Offering/Administering the vaccine
o EEOC advisory: this is not a disability-related inquiry under the ADA:
• Simply providing a vaccine
o EEOC advisory: this is very likely a disability-related inquiry:
• Medical history questions which must be asked prior to administering the vaccine
 If offering/administering the vaccine, coordinate with the third party
administrator on record-keeping and training requirements, division of
labor.
 Keep in mind, additional OSHA & CDC guidance exists for those who
administer the vaccine in-house

13. 13
Mandatory or Voluntary Policy?
 Can we legally mandate vaccines for my employees?
o Yes; in a non-discriminatory manner - i.e. subject to potential accommodations for
religion, disability, and pregnancy/nursing.
 Should we?
o Depends on
• Nature of workplace
• Nature of workforce
• Tolerance for uncertainty (lawsuits, incentives, vaccine availability, variants)
• Tolerance for continued COVID in the workplace/Workplace transmission
 Is it possible to have “No Policy?”

14. 14
Mandatory or Voluntary?
 Workforce Considerations
o Age of workforce
o Health condition of workforce
o Living situation of workforce
o Prior Outbreaks
o Fungibility
o Concerns regarding safety of vaccinations
o Did you have trouble instituting mandatory masks?

15. 15
Mandatory or Voluntary?
 Workplace Considerations
o OSHA “General Duty” clause should guide you
o Nature of business
• Physical layout (manufacturing facility vs. office vs. ski patrol)
• Contact with customers/Customer trust
o Remoteness of workforce
o Living quarters
o Prior outbreaks
o What measures you have been taking

16. 16
Mandatory or Voluntary?
 Too early to fully require mandatory: not enough vaccine for all
 Not too early to communicate to employees:
o Emails
• Re-institute regular communications about COVID and vaccines
o Letters to employees and their families
o Information at the Worksite
• Posters, announcements, employee meetings, daily morning huddles
 Communicate with customers
 Change job descriptions or other policies, as needed

17. 17
Vaccine Policy and ADA/Title VII Accommodations
 Both Mandatory and Voluntary Vaccine Policies are subject to disability and
religious accommodation
 Follow normal policy and procedure for accommodation requests
 Possible accommodations:
o Mask
o Separation from others
o Remote work
o Leave
 Undue burden?

18. 18
Potential Incentives for Policies
 Money
 (Paid) time off for time to vaccinate
 PTO to use in future
 PTO to use to recover from any side effect – particularly 2nd dose for some
 Benchmark goals (i.e. 80% vaccinated = bonus for all who are vaccinated)
 Masking – in the future potentially can go mask free
 Reinstate travel, conferences, lunches, etc. as able
 Counterpoint: incentives may signal that the vaccine is not itself valuable

19. 19
Potential Limitations on Voluntary Incentives
 Voluntary Vaccine Policy may be a Wellness Plan (must be compliant with ADA
and i.e. not coercive)
 Previously: could offer a benefit of up to 30% of the cost of individual healthcare
coverage without being coercive
 Now: Unknown
o January 2021 proposed EEOC rule allowing for only a “de minimis” benefit like a water bottle
or gift card of “modest” value
o Proposed rule suspended by current administration
 Anticipate guidance soon
 Also: Accommodations to Voluntary Policy for ADA (and Title VII) for employee to
obtain the incentive through another means

20. 20
Things are changing rapidly. We are working extremely hard to keep up
with all that is happening. This webinar is based on available information
as of Feb. 23, 2021, but everyone must understand that this webinar is not
a substitute for legal advice. If there are questions about the information
contained in the presentation and how it applies to your business, then you
should contact your legal counsel. This presentation is not intended and
will not serve as a substitute for legal counsel on these issues. Given the
complexity and rapidly changing landscape, you must consult with your
legal counsel on these issues.
Legal Disclaimer

21. 21
Presenters:
Amy Lombardo
Shareholder – Boise
208.562.4900
alombardo@parsonsbehle.com
Susan Baird Motschiedler
Of Counsel – Salt Lake City
801.536.6923
smotschiedler@parsonsbehle.com