covid_vaccines___beyond.2021.pptx

COVID-19 Vaccines and Beyond!
Presented by:
Cheryl U. Brown, Esq.
© 2021 Davis, Agnor, Rapaport & Skalny, LLC

COVID-19 Vaccines & Beyond
2
Light at the End of the Tunnel

3
COVID-19 Pandemic: How Far Have We Come?
 3 Emergency Authorized Use Vaccines
 Everyone 12 years of age or older can be
vaccinated
 In the US:
◼ 48% of Americans have received 1 dose of the vaccine;
37% fully vaccinated.
◼ 65 and older: 85% have received 1 dose; 73% fully
vaccinated.

4
Maryland’s Vaccine Response
 66% have received 1 dose; 42% fully vaccinated
 Phase 3: All Marylanders 12+ are eligible to receive
a vaccine.

6
CDC MASK OFF!

7
Fully Vaccinated Persons
 Resume activities without wearing masks or physically distancing, except
where required by federal, state, local, tribal, or territorial laws, rules
and regulations, including local business and workplace guidance
 Resume domestic travel and refrain from testing before or after travel or
self-quarantine after travel
 Refrain from testing before leaving the United States for international travel
(unless required by the destination) and refrain from self-quarantine after
arriving back in the United States
 Refrain from testing following a known exposure, if asymptomatic, with
some exceptions for specific settings
 Refrain from quarantine following a known exposure if asymptomatic
 Refrain from routine screening testing if feasible.

8
Vaccines & the Workplace
 Mandatory v. Non-Mandatory
 Return to Work
 Exemptions
 Accommodations
 Terminations

9
To Vaccine or Not to Vaccine….?
Mandatory Vaccines
 Keeps the workforce healthy
 Reduce absences due to
illness
 Reduce time missed from work
to get vaccinated
 Improve productivity
 Improve morale
 Exemptions/Accommodations
 Need a Plan
Recommend Vaccines
 Allows individual decisions
 Train managers on
communication
 Improve employee relations &
morale
 Avoids medical conversations
 Provide Incentives

10
Can Employers Mandate Vaccines?
YES - Employers can mandate COVID-19 vaccines.
◼ Justification for mandating vaccination, unvaccinated
employees present a "direct threat" to others in the workplace.
◼ Under the ADA, an employer can have a workplace policy that
includes "a requirement that an individual shall not pose a
“direct threat” to the health or safety of individuals in the
workplace.“
12/16/20, EEOC issued Guidance

11
Are vaccines “medical examinations” under the
ADA?
Administration of a vaccination is not a medical
examination, however, pre-screening vaccination
questions may elicit information about a disability
◼ If the employer administers the vaccine, it must show that
such pre-screening questions it asks employees are “job-
related and consistent with business necessity.”
◼ NOT necessary if:
◼ If a third party administers the vaccine; or
◼ Vaccine is voluntary.

12
Exemptions
 Medical: Some people may be at risk for an
adverse reaction because of an allergy, pregnancy
or a qualifying medical condition.
 Religious: Some people may decline vaccination
because of a sincerely held religious belief.

13
Vaccines and Religious Discrimination
 Employees may be exempt from mandatory vaccines due to
a “sincerely held religious belief.”
 Definition of religion is broad and protects beliefs, practices,
and observances with which the employer may be unfamiliar.
 Employer should assume that an employee’s request for
religious accommodation is legitimate and based on a
sincerely held religious belief.
 Employers can probe into an employee's requests and ask
for supporting information when they "have an objective basis
for questioning either the religious nature or the sincerity of a
particular belief, practice, or observance."

14
Vaccines & ADAAccommodations
 Employees may be exempt from mandatory vaccines due to a qualified disability,
pregnancy or allergy
 WHAT CAN AN EMPLOYER DO?
◼ If an employee who cannot be vaccinated poses a direct threat to the workplace, the
employer must consider whether a reasonable accommodation can be made, such as
allowing the employee to work remotely or take a leave of absence.
◼ Determine whether allowing the unvaccinated employee to return to work will pose a
“direct threat” to the workplace
 “Direct threat" due to a "significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation."
 4 factors to determine whether a direct threat exists:
◼ The duration of the risk.
◼ The nature and severity of the potential harm.
◼ The likelihood that the potential harm will occur.
◼ The imminence of the potential harm.

15
Vaccines & Accommodations
 An individual may present a direct threat which "includes a
determination that an unvaccinated individual will expose others to
the virus at the worksite.“
◼ If there is no direct threat that can be documented, should grant the
exemption.
◼ As more employees are vaccinated, does the direct threat posed by a
few unvaccinated employees disappear?
 If there is a direct threat, you must then engage in the interactive
process to determine whether you can provide a reasonable
accommodation, one that will not pose an undue hardship to your
business.
 Possible accommodations include: providing PPE to the
employee, or allowing the employee to work remotely.

16
Can I deny accommodation based upon undue
hardship?
 Yes, an employer can refuse to provide an
exemption if it would pose an "undue hardship."
 What constitutes an "undue hardship" varies
depending upon the context in which the exemption
is sought.

17
Vaccines & Genetic Information
 Pre-screening vaccine questions that ask about genetic
information, such as family members’ medical histories,
may violate Genetic Information Nondiscrimination Act
(GINA).
 Under GINA, employers may not:
◼ use genetic information to make decisions related to the
terms, conditions, and privileges of employment,
◼ acquire genetic information except in six narrow
circumstances, or
◼ disclose genetic information except in six narrow
circumstances.

18
GINA
 GINA defines “genetic information” to mean:
◼ Information about an individual’s genetic tests;
◼ Information about the genetic tests of a family member;
◼ Information about the manifestation of disease or disorder in
a family member (i.e., family medical history);
◼ Information about requests for, or receipt of, genetic services
or the participation in clinical research that includes genetic
services by the an individual or a family member of the
individual; and
◼ Genetic information about a fetus carried by an individual or
family member or of an embryo legally held by an individual
or family member using assisted reproductive technology.

19
Top Employer Vaccine Questions
◼ Employers can mandate that employees get the COVID-
19 vaccination.
◼ Any vaccination authorized by the FDA is not a "medical
examination" for purposes of the Americans With
Disabilities Act (ADA).
◼ Employers may condition employment on vaccination
status, provided the employer grants reasonable
accommodations to employees who are unable to
receive the vaccine because of a disability or religious
reasons.

20
Can I require my employees to tell me if they are
vaccinated and, if so, to provide proof?
 Yes. Employers can require proof of vaccination.
◼ Not a disability-related inquiry and is permitted under the
ADA.
◼ However, asking an employee about the reasons for
declining vaccination could require the employee to reveal
information about a disability and would be subject to the
ADA standard.
◼ Communicate to employees not to provide any medical
information as part of the proof of vaccination.
◼ Anticipate requests for exemptions.

21
What if an employee has already had COVID-19?
Should they still get vaccinated?
 Yes
 Not sure how long protection lasts for those persons
who had COVID-19.
 Vaccination should be offered to workers regardless
of whether they already had COVID-19
 Workers should not be required to have an antibody
test before or after they are vaccinated.

22
May employers treat unvaccinated employees
differently than vaccinated employees?
 Yes.
 CDC guidance states
◼ Fully vaccinated employee do not need to wear a mask.
◼ Employees who are fully vaccinated do not need to quarantine if they have an
exposure unless the employee experiences symptoms.
 Employers may not treat an employee who is unvaccinated less favorably in
terms of conditions of employment if the employee rejects the vaccine for
sincerely held religious beliefs or an ADA-qualifying disability.
 Unlikely that requiring an unvaccinated employee to wear a mask would be
considered a less favorable term and condition of employment
 OSHA recommends that vaccinated workers continue to follow protective
measures, such as wearing a face covering and remaining physically
distant; but reviewing recent CDC guidelines and will update accordingly.

23
Can an employer offer incentives for employee to be
vaccinated?
 It depends
 Paid days off; water bottles, lunch, gift cards, cash
 EEOC suggests employers keep incentives to de minimis gifts
 Employers may not discriminate against their employees. If they offer
incentives to receive a vaccine that some of their employees cannot receive
due to religious or health reasons, they are in danger of potentially violating
discrimination laws because some of their employees cannot receive that
benefit.
 ADA forbids employers from coercing employees into providing their
disability-related information, which could be solicited by the screening
questionnaires involved in receiving Covid-19 vaccines.
 Employers must be careful not to elicit details about their employees’
disabilities, especially when they are the ones offering the vaccine.

24
Can we require employees who refuse to be vaccinated to
sign a waiver/release of claims against the company if they
contract COVID-19 at work?
◼ Do not recommend that employers require employees to
sign such waivers because workers' compensation benefits
generally cannot be waived and any possible limited benefits
probably do not outweigh the potential downsides.
◼ Waivers between employers and employees cannot cover
Occupational Safety and Health Administration (OSHA)
complaints or investigations. No waiver or other attempt at
limiting liability should replace the need to maintain a safe
workplace.
◼ Practically speaking, attempted waivers may have a
negative psychological effect on employees and thus hinder
operations and could result in negative publicity concerns.

25
Do I need to request updated information for an employee
who has a disability and is returning to the workplace?
 Employers may need to request updated
information from employee’s physicians if employee
requests another accommodation.
 Employers should not ask employees why they
can’t be vaccinated
 If an employee refuses to return to work, then ask
for a medical provider certification for an
accommodation.

26
Should I include contractors and temporary
employees in my COVID-19 vaccination plan?
 For workers employed by contract firms or
temporary help agencies, the staffing agency and
the host employer are joint employers and,
therefore, both are responsible for providing and
maintaining a safe work environment.
 The extent of the responsibilities the staffing agency
and the host employer have will vary, depending on
the workplace conditions, and should be described
in their contract.

27
When Can Employers Terminate?
 It depends. If an employee cannot get vaccinated due to a disability or
sincerely held religious belief you may be able to terminate if no reasonable
accommodation exists.
 Properly document that you cannot accommodate and have considered all
reasonable options.
◼ Document why the company cannot accommodate
◼ Why can’t the job be done remotely
 Terminating an employee with a disability:
◼ Consider whether you want to place them on an unpaid leave or
◼ Is there is any alternative to firing.
◼ If there is no end in sight to the need for this leave - such as may be the case
with an employee who has a condition that will preclude then from taking the
vaccine - termination may be the only alternative.
 Other employee rights may apply

28
THANK YOU
Cheryl Brown
cbrown@darslaw.com
410-995-5800

29
Disclaimer
The foregoing information is not intended to provide
specific legal advice for any specific situation. It is
intended as general information only. Legal advice
can be provided only in the course of an attorney-
client relationship with reference to all the facts of a
specific situation. The information, therefore, must not
be relied on as a substitute for obtaining legal advice
from a licensed attorney.

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