As we prepare for COVID vaccines to become more widely available, employers will be faced with questions of how to continue keeping their workplace safe and what can be asked of employees. Employers should take these legal considerations into account before implementing vaccine requirements.

1. COVID Vaccine
EMPLOYER LEGAL CONSIDERATIONS
February 8, 2021

2. Two COVID-19
Vaccines
Authorized for
Emergency Use
u US Food and Drug Administration
(FDA) assessed whether the known
and potential benefits outweighed
the known and potential risks of these
vaccines
u Both vaccines require two shots
u FDA didn’t have as much data as is
required for regular FDA approval
u Authorized both for emergency use
because of current pandemic
u There is a still a lot we don’t know …
Pfizer-BioNTech COVID-19
Vaccine
Moderna COVID-19 Vaccine

3. Plan to
Vaccinate
Americans?
u Vaccinations will be provided at no
cost to Americans (any administration
fee will be covered by an employer’s
group health plan)
u Trying to reach “herd immunity”
u …this is somewhere between 50
and 70% of the population,
according to Carlos del Rio, M.D.,
FIDSA, and Infections Diseases
Society of America (IDSA)*
u There is a plan in place (stages)
u Has been a bumpy rollout
*https://www.idsociety.org/multimedia/clinician-
calls/cdcidsa-covid-19-clinician-call-herd-immunity--vaccines-
update/

4. How should
employers think
about this issue of
their employees
being vaccinated?
u Even though percentages for
complications/death are lower than
others for certain groups of people,
there is not enough information to
conclude that any one person will be
fine by contracting the virus.
u There have been almost half a million
deaths in this country in less than a
year due to this virus. Scientists are
working hard to analyze the data
collected.
u We are living in a world of
percentages and risk assessments
right now.

5. How should
employers think
about this issue of
their employees
being vaccinated?
u General duty to make reasonable
efforts to maintain a safe work
environment for employees — free
from recognized hazards that are
causing or are likely to cause death
or serious physical harm. See 29 U.S.C.
654(a)(1).
u COVID-19 is a contagious virus. It has
the potential to cause serious
physical harm or death.

6. How should
employers think
about this issue of
their employees
being vaccinated?
u What might make an employee less
of a threat of passing on the virus?
u Safety measures already in place –
masks, social distancing, etc.
u Getting COVID-19 and recovering
from it
u Getting one of the two vaccines
u There is still much we don’t know. This
virus is still being studied.

7. How should
employers think
about this issue of
their employees
being vaccinated?
u The government suggests getting
COVID-19 and recovering from it is
riskier health-wise to the average
person than getting the vaccine.
u And for obvious reasons, employers
should not be encouraging their
employees to get a deadly virus.

8. How should
employers think
about this issue of
their employees
being vaccinated?
Pfizer-BioNTech COVID-19 Vaccine
(“BNT162b2”)
u A total of 43,548 participants underwent
randomization, of whom 43,448 received
injections: 21,720 with BNT162b2 and
21,728 with placebo.
u Conclusion: A two-dose regimen of
BNT162b2 conferred 95% protection
against Covid-19 in persons 16 years of
age or older.
SOURCE: The New England Journal of Medicine
https://www.nejm.org/doi/full/10.1056/NEJMoa2034577

9. How should
employers think
about this issue of
their employees
being vaccinated?
Moderna COVID-19 Vaccine
(“mRNA-1273”)
u The trial enrolled 30,420 volunteers who
were randomly assigned in a 1:1 ratio to
receive either vaccine or placebo (15,210
participants in each group).
u The mRNA-1273 vaccine showed 94.1%
efficacy at preventing Covid-19 illness,
including severe disease.
SOURCE: The New England Journal of Medicine
https://www.nejm.org/doi/full/10.1056/NEJMoa2035389

10. How should
employers think
about this issue of
their employees
being vaccinated?
CAUTION
u What we know about vaccines is
based on short-term data. As
scientific discovery evolves, so
could our understanding of the
vaccines.
u Example: what experts said about
masks

11. How should
employers think
about this issue of
their employees
being vaccinated?
u It was not studied in these trials
whether the participants could still
carry the virus and spread it to others
even after getting the vaccine.
u The FDA requires that individuals
getting a vaccine receive a notice
that explains they don’t have to take
the vaccine. (i.e. no federal
mandate).
u Things will become clearer as more data is
gathered over time.

12. How should
employers think
about this issue of
their employees
being vaccinated?
Employee Perspective
u May be wary about getting the vaccine
for reasons discussed
u Might feel uncomfortable taking the
vaccine because of a generalized fear
it is unsafe
u May feel the vaccine isn’t necessary
because they already had COVID-19
and recovered

13. How should
employers think
about this issue of
their employees
being vaccinated?
Employee Perspective
u May have underlying health conditions
that cause them to be wary of taking
the vaccine
u May have been told by their doctors
that they should not get vaccine
u May have a sincerely held religious
belief against getting the vaccine

14. Equal Employment
Opportunity Commission
Guidance
u EEOC issued guidance on
December 16, 2020
u Updated guidance issued earlier
in the year.
u Helps employers understand how
to meet their duty to maintain a
safe workplace.

15. EEOC GUIDANCE
u Guidance from public health authorities is
likely to change as the pandemic
evolves.
u Therefore, employers should follow the
most current information on maintaining
workplace safety.
u The CDC has FAQs for businesses on its
website
u These FAQs are updated
u The EEOC also has a publication entitled
“Pandemic Preparedness in the Workplace
and the Americans with Disabilities Act”
available on its website

16. EEOC GUIDANCE
on
Vaccine
u The vaccine is not a medical exam
u Nor is requiring proof of the vaccine
u This means that an employer
subject to the Americans with
Disabilities Act (“ADA”)* need not
demonstrate that mandating the
vaccine or requiring proof of it is
related to that employee’s job and
consistent with business necessity.
*The ADA applies to employers with 15 or more employees.
See 42 U.S. Code § 12111(5)(A).

17. EEOC GUIDANCE
However –
u Pre-screening vaccination questions
could cross the line into medical
inquiries (implicating the ADA or the
Genetic Information
Nondiscrimination Act) if there are
questions likely to elicit information
about a disability.

18. EEOC GUIDANCE
u Under ADA, would need to be job-
related and consistent with
business necessity if vaccine is
MANDATED by employer
u exception if the vaccine is
administered by 3rd party with
no contract with employer
u If voluntary, those questions won’t
need to be job-related or
consistent with business necessity
under the ADA

19. EEOC GUIDANCE
What does this mean?
u Employers might prefer to make the vaccine
voluntary so the employer does not have to
show that certain pre-screening questions
were job-related and consistent with
business necessity
u Maybe you can get enough coverage with a
voluntary program

20. EEOC GUIDANCE
Job-related and consistent with business
necessity
Employer must have a reasonable belief:
u based on objective evidence
u that unvaccinated employee would pose
a “direct threat”
u to the health and safety of him or herself, or
others
u that could not be eliminated or reduced by
reasonable accommodation.

21. EEOC GUIDANCE
Direct Threat Factors:
1) Duration of the risk;
2) Nature and severity of potential harm;
3) Likelihood the potential harm will
occur; and
4) Imminence of the potential harm.

22. EEOC GUIDANCE
Additional factors that might factor in
analysis:
u how many other employees are
vaccinated?
u how many employees are actually in the
office?
u can employee in question work remotely?

23. EEOC GUIDANCE:
It is possible to
mandate the vaccine
The EEOC indicates that employers can
mandate the vaccine, but if they do,
they must make exceptions under ADA
and Title VII.

24. EEOC GUIDANCE:
It is possible to
mandate the vaccine
American with Disabilities Act:
ADA
The ADA applies to employees refusing
to get the vaccine due to disability
reasons

25. Is the employee a
direct threat?
Yes
Interactive
process
Can you accommodate
without undue hardship?
Yes (i.e.
employee
can work
remotely)
No vaccine
No
Consult with
employment
counsel on
options
No
No
vaccine
Refusing to get
vaccine for disability-
related reasons when
vaccine is mandated

26. EEOC GUIDANCE:
It is possible to
mandate the vaccine
Title VII – Religious Beliefs
u Title VII applies to employees refusing to get
the vaccine because of a sincerely held
religious belief

27. Does the employer have an
objective basis for questioning the
religious nature or the sincerity of
the employee’s belief, practice or
observance?
(i.e. seems the employee is just scared
of the vaccine, versus having an
objection religious in nature)
Yes
Analyze if an
undue hardship
exists
Engage in dialog
to learn more –
consult with
employment
counsel
No
No vaccine
Refusing to get
vaccine for religious-
related reasons when
vaccine is mandated

28. It is probably best to
make the vaccine
voluntary
Employees have been through a lot:
u A stressful year
u Financial duress
u Exhaustion with COVID protocols
u Isolation
u Political anxiety
u Grief
u Changed circumstances
u Missing family and friends
u Health issues

29. It is probably best to
make the vaccine
voluntary
u Mandating?
u Potential liability for non-compliance as
previously discussed.

30. It is probably best to
make the vaccine
voluntary
u Also, an employee could be a
whistleblower under OSHA
(Occupational Safety and Health
Administration) if refusing to get a
mandated vaccine due to safety
concerns.
u OSHA has protections for whistleblowers.
u Take care when responding to
employees who object to a mandated
vaccine; contact counsel if necessary.

31. It is probably best to
make the vaccine
voluntary
OTHER REASONS
u Uncharted territory
u Most employees may get the vaccine if
voluntary
u May see more employee issues if vaccine is
forced
u Perhaps poll employees and ask what they
would do/ who has already received the
vaccine?
u (All the personal info must be kept
confidential)

32. Incentives?
u Some employers are offering
incentives – like 2-3 days extra paid
time off – in exchange for getting a
vaccine
u Best practice is to make sure that the
actual time spent getting the
vaccine is compensated (helps
motivate)

33. Incentives?
u There are limits on the incentives employers can
give under wellness plans (if it is a gift or cash,
must be “de minimis” or not seen by EEOC as too
coercive)
u Example: water bottle is okay, or gift card of modest
value
u This is from the EEOC’s wellness program rules that
haven’t yet gone into effect but likely will soon

34. Incentives?
u Could educate employees about the
vaccine and its benefits
u Could bring the vaccination process on
site and make it voluntary

35. Incentives?
u Employers should offer employees with
disabilities who can’t get the vaccine
some equivalent of the benefit (to
remain compliant with the ADA).

36. If an employer requires
the vaccine, are there
liability implications for
any adverse
reactions/
complications?
u Unlikely to cause employer any
issues if employer is following the
federal government’s guidance
u Would be hard to show the
employer was being negligent
u It is possible that worker’s
compensation would cover the
claim as a workplace injury

37. Is there any way to
limit this liability?
u If employer makes the vaccine
voluntary instead of mandatory, there
are fewer obligations on the employer
(as discussed).
u If the employer makes the vaccine
mandatory, the employer must be
careful to comply in all the ways
discussed.
u obtain advice from employment counsel
when necessary.
u Also, document, document, document!

38. Is it different if the
vaccines are delivered
on-site versus at a
clinic that employers
direct employees to?
On-site Off-site
Voluntary
Make sure incentives
aren’t coercive
Make sure incentives
aren’t coercive
Mandatory*
Pre-screening questions
that implicate the ADA
must be job-related and
consistent with business
necessity
-If there is no contract
with the 3rd party site,
then pre-screening
questions don’t
implicate employer.
-If there is a contract,
then same standard
needs to be met for
pre-screening
questions.
* Make sure employees know the process for how to object whether on or off-site.

39. Keep records
Of everything!

40. Other things to note (not related to
the vaccine)
u Individuals with the virus are a direct
threat to the health of others, and
employers can take COVID-19
screening steps to keep them out of
the workplace.
EEOC GUIDANCE
Cont’d

41. u Employees who become ill with
symptoms of COVID-19 should
leave the workplace immediately.
u Make sure you have proper
protocols in place.
EEOC GUIDANCE
Cont’d

42. u Because of the pandemic,
employers can measure an
employee's body temperature –
this is not considered a “medical
examination” under federal law.
(Of course, some employees with
COVID-19 don’t have any
symptoms.)
EEOC GUIDANCE
Cont’d

43. u Because any employee who
becomes infected with COVID-19
should not be in the workplace, it is
okay to require proof of a negative
COVID test before allowing the
employee back into the workplace.
EEOC GUIDANCE
Cont’d

44. What is NOT allowed?
u Requiring antibody testing before allowing
employees to re-enter the workplace.
u Asking employees physically coming into the
workplace whether they have family
members who have COVID-19.
u Broadly disclosing medical information about
employees …
u … like whether an employee has COVID-19 or
its symptoms – or why an employee may not
have been vaccinated.
EEOC GUIDANCE
Cont’d

45. What IS allowed?
u COVID-19 viral tests
u Asking whether employees have had contact
with anyone diagnosed with COVID-19, or
with anyone who has the associated
symptoms.
u Sharing the name of the infected or
symptomatic individual with those who need
to know to contact trace and inform others.
EEOC GUIDANCE
Cont’d

46. EEOC GUIDANCE
Cont’d
Confidentiality must be
maintained to the greatest
extent possible.

47. u Information about employees relating to
COVID must be kept in the medical file,
separate from the employee file.
u Make sure digital access is protected, too.
EEOC GUIDANCE
Cont’d

48. u Are you prepared to terminate the
employment of your employees who refuse to
get the vaccine (and don’t have legal
protections)?
u How easy will it be to get new employees?
u Costs to recruiting and onboarding
QUESTIONS TO
CONSIDER

49. u Do employees still have to wear masks if
vaccinated?
u According to current CDC guidance, yes.
QUESTIONS TO
CONSIDER

50. u Do you have clear communication systems in
place?
u Prevent misinformation and gossip
QUESTIONS TO
CONSIDER

51. Ali Tozier, Esq.
atozier@mpmlaw.com
(207) 523-8224
Questions?
Stacey Neumann, Esq.
sneumann@mpmlaw.com
(207) 523-8214