(1) When will COVID-19 vaccines be available?
On December 11, 2020, the U.S. Food and Drug Administration (FDA) issued the first emergency use authorization for use of a COVID-19 vaccine in persons aged 16 years and older in the United States.1 The U.S. government expects that several million Americans will be vaccinated by the end of 2020. The broader general public, however, is not anticipated to have access to the vaccine until spring/summer 2021.2 State and county/local authorities will determine the order in which individuals are able to receive the vaccine. The earliest recipients will likely continue to be healthcare workers and residents of long-term care facilities.3
(2) Will people take a COVID-19 vaccine?
Employers should anticipate some hesitation from employees with respect to COVID-19 vaccination. On December 8, 2020, Gallup reported that only 63% of Americans surveyed expressed willingness to receive an FDA-approved COVID-19 vaccine. While, at the moment, public openness to COVID-19 vaccines appears to be trending upward, employers should expect that even when the vaccine becomes more accessible and has been further studied, some employees will nonetheless express disinterest and may refuse to receive it.
Employers should prepare a course of action for such scenarios. This includes a determination of whether they intend to mandate employee vaccination (where permissible) and/or present other options to employees. As discussed below, mandatory vaccination programs raise a host of workplace issues. Optional programs promoting vaccinations are recommended for most workplaces at this time, particularly in the early stages of the vaccine rollout.
(3) Can employers purchase the vaccine to ensure their employees have access?
The U.S. government has stated its intention to purchase all supplies of COVID-19 vaccines.4 Vaccine doses purchased with U.S. taxpayer dollars will be given to Americans at no cost.5 Accordingly, at least initially, employers cannot purchase COVID-19 vaccines on their own.
(4) What can employers do to encourage employees to take the vaccine?
Perhaps most impactfully, employers should ensure that employees do not have any obstacles to obtaining vaccinations, and should assist with logistics to allow for proper and easy administration of the vaccine. For instance, employers can provide scheduling flexibility and solicit employee input on how the employer could facilitate opportunities to take the vaccine. Employers can also encourage vaccination through work communications explaining employee health benefit coverage or highlighting higher-level employees who have opted for vaccination (and have voluntarily decided to share that information to educate and encourage).
Previously, the Centers for Disease Control and Prevention (CDC) issued guidance for promoting flu vaccinations in the workplace. These same strategies may be effective for the COVID-19 vaccine.
(5) Can employers make vaccines mandatory?
We have previously noted that many employers may be able to lawfully require employee COVID-19 vaccinations in certain circumstances given the determination by the Equal Employment Opportunity Commission (EEOC) that COVID-19 constitutes a “direct threat” to workplace health and safety.6 As detailed further below, employee vaccination policies will likely have to meet the “job-related and consistent with business necessity” requirement set forth under the Americans with Disabilities Act (ADA). Such policies will also need to provide for certain exceptions in accordance with federal, state, and/or local laws or regulations.
On December 16, 2020, the EEOC issued guidance on the COVID-19 vaccine primarily outlining the consideration employers must give to employees who request reasonable accommodation for their disabilities and employees whose religious beliefs or practices conflict with vaccination.7 Notably, the guidance makes the point of addressing situations where employers require vaccines when they are available.
The EEOC stated that an employer’s administration of an FDA-approved or -authorized COVID-19 vaccine to any employee does not itself constitute a “medical examination.” However, “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries.” An employer must show that such questions are “job-related and consistent with business necessity.” To satisfy this standard, an employer must reasonably believe, based on objective evidence, that an employee who does not address the pre-screening questions and is not vaccinated will pose a direct threat to health or safety. To note, an employer does not need to meet this standard if it has offered vaccination to employees on a voluntary basis and the pre-screening vaccination questions are also voluntary.
The EEOC also specified that if an employee receives an employer-mandated vaccination from a third party that does not have a contract with the employer (such as a pharmacy or a healthcare provider), the ADA “job-related and consistent with business necessity” requirements regarding disability-related inquiries would not apply to the pre-screening questions.
If an employee indicates that he or she is unable to receive an employer-mandated COVID-19 vaccine due to a disability, the employer must show that “an unvaccinated employee would pose a 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 [absent undue hardship].’” 29 C.F.R. 1630.2(r).
In addition, if an employer who has been notified that an employee’s sincerely held religious belief or practice prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act.
If an employee cannot comply with a mandatory vaccination policy due to a disability or a sincerely held religious belief or practice, and there is no possible reasonable accommodation, then “it would be lawful for the employer to exclude the employee from the workplace,” according to the EEOC guidance. This does not mean, however, that an employee can immediately be terminated. Rather, employers maintain their obligation to assess whether the employee is entitled to any other rights under applicable federal, state, and local laws or authorities.
Notwithstanding the foregoing, at least initially, employers in workplaces other than healthcare or similar settings should think carefully before mandating vaccinations for a few reasons. COVID-19 vaccines are pending full approval by the FDA. Moreover, there will be limited access to COVID-19 vaccines for some time, and as seemingly acknowledged by the EEOC, vaccine availability is implicit to any mandate. Additionally, at this early stage, employees may want to make their own determinations on the safety and effectiveness of the vaccine. While employees have generally come to accept COVID-19 testing and screening in the workplace, vaccination may be seen as more intrusive, and mandates may be seen by some as an undue infringement on personal healthcare choices. Due consideration should be given to employee morale issues that may be created by vaccine mandates. These issues should be weighed against the effectiveness of policies that widely promote and encourage vaccination rather than mandate it.
(6) Should employers pay for employees to get vaccinated?
Any fees will likely be covered through the employee’s health insurance plan. Once the vaccine is widely available, employers should pay for any non-covered fees, especially if employers plan to mandate vaccinations.
Currently, employees cannot be charged for receiving the vaccine. The federal government is covering the cost of the actual vaccine, but vaccine providers may charge an administrative fee for giving the shot to someone.8 At this point, only COVID-19 vaccines purchased by the federal government are available in the United States. These vaccines are being administered through providers participating in the CDC COVID-19 Vaccination Program.9 Providers that participate in the CDC COVID-19 Vaccination Program contractually agree to administer a COVID-19 vaccine regardless of an individual’s ability to pay or coverage status, and may not seek any reimbursement, including through balance billing, from a vaccine recipient. Instead, vaccine providers will seek administration fee reimbursements through an individual’s public or private health insurance plan, including employer-sponsored plans, or by the Health Resources and Services Administration’s Provider Relief Fund.10
Additionally, the Coronavirus Aid, Relief, and Economic Security (CARES) Act mandates that all employer-sponsored health insurance provide coverage without cost sharing for COVID-19 vaccines.11
If the vaccine costs and fees are no longer covered when the vaccine is widely available, employers should strongly consider covering administration fees. Covering the administration fee will likely increase employee inoculation, which is beneficial for employers’ efforts to prevent workplace exposure and outbreaks.
(7) Can employers be held liable if an employee has a vaccine reaction?
Vaccine-related injuries may trigger workers’ compensation liability if employees can meet relevant workers’ compensation requirements in their state, such as establishing that the reaction is a work-related injury. Some cases have deemed an employee’s adverse reaction to a mandated vaccine as a compensable injury for the purposes of workers’ compensation.12 On the other hand, employers in many jurisdictions currently already have heightened workers’ compensation liability for COVID-19 illness, which continues to spread within unvaccinated workforces. For example, California recently enacted SB 1159, which codified the Governor’s prior executive orders creating a rebuttable presumption that an employee’s COVID-19 illness is an occupational injury and therefore eligible for workers’ compensation benefits if certain criteria are met. Third parties may also sue in tort for COVID-19 illnesses caused by the workplace, and employees may be able to sue also if exceptions to workers’ compensation liability are met. Increasing vaccination rates in the workplace would reduce these illness-associated liability risks that already exist.
These issues should be considered and weighed when implementing a vaccination program, particularly a mandatory one.
(8) Do we need to follow other COVID-19 safety protocols now that there’s a vaccine?
Yes. The CDC recommends following COVID-19 protocols even after individuals receive two doses of the COVID-19 vaccine.13 Additionally, vaccines are currently limited to certain individuals, and it will take some time before the general public can be vaccinated.14 Moreover, some jurisdictions have mandated the use of safety protocols in the workplace, including social distancing and mask wearing, as described here.
Experts are still learning about the protection that COVID-19 vaccines provide under real-life conditions. Various factors, including how many people are vaccinated and how the virus is spreading in communities, may affect CDC recommendations. Despite how effective these vaccines are, they will not protect every person, and current vaccine supplies are limited.15 Therefore, individuals who are vaccinated should continue to follow COVID-19 protocols such as wearing masks, social distancing, washing hands, etc., particularly where required by law.
(9) What kind of vaccine policies and protocols should employers put in place?
Employers should carefully consider whether to mandate or encourage employees to take COVID-19 vaccines once the vaccines are widely available. Employers also should maintain current prevention practices, such as continuing remote work or staggering employee shifts. Overall, employers should continue to follow CDC guidelines and relevant local and state guidelines.
Employers who mandate vaccines should anticipate exemption requests and should create policies and procedures for handling exemption requests. This includes setting up a process for employees to request exemptions, a process for evaluating requests, a set of criteria for consequences for not complying with mandates, and a process for providing any reasonable accommodations pursuant to local and federal laws, as discussed in Question 5 above.
(10) How can we learn more about vaccine issues?
Manatt’s multidisciplinary team of employment, healthcare, government and regulatory, and privacy and data security professionals will continue to work together to support our clients as new guidance and information is released regarding COVID-19 vaccination issues. For the latest updates, subscribe to our COVID-19 Alerts list. Additional resources are posted below:
Vaccine Distribution Strategy Articles:
COVID-19 Resources:
1 U.S. Department of Health & Human Services, “COVID-19 Vaccine Distribution,” available at https://www.hhs.gov/coronavirus/covid-19-vaccines/distribution/index.html.
2 U.S. Department of Health & Human Services, “Fact Sheet: Explaining Operation Warp Speed,” available at https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html.
3 Centers for Disease Control and Prevention, “When Vaccine is Limited, Who Gets Vaccinated First?” (updated December 16, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations.html.
4 U.S. Department of Health & Human Services, “Fact Sheet: Explaining Operation Warp Speed”; U.S. Department of Health & Human Services, “Trump Administration purchases additional 100 million doses of COVID-19 investigational vaccine from Moderna” (December 11, 2020), available at https://www.hhs.gov/about/news/2020/12/11/trump-administration-purchases-additional-100-million-doses-covid-19-investigational-vaccine-moderna.html.
5 Centers for Disease Control and Prevention, “Frequently Asked Questions about COVID-19 Vaccination” (updated December 13, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html.
6 Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (December 16, 2020), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (“An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others.”).
7 Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (December 16, 2020), available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Section K).
8 Centers for Disease Control, COVID-19 (Coronavirus Disease), “Frequently Asked Questions about Vaccination” (updated December 13, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html.
9 Centers for Medicare and Medicaid Services, “COVID-19” (last accessed December 16, 2020), available at https://www.cms.gov/covidvax-provider.
10 Centers for Medicare and Medicaid Services, “COVID-19” (last accessed December 16, 2020), available at https://www.cms.gov/covidvax-provider; U.S. Department of Health & Human Services, “CARES Act Provider Relief Fund: FAQs” (last accessed December 16, 2020), available at https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/faqs/index.html.
11 Department of Treasury, “Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency” (last accessed December 16, 2020), available at https://www.cms.gov/files/document/covid-vax-ifc-4.pdf; Centers for Medicare and Medicaid Services, “Fourth COVID-19 Interim Final Rule with Comment Period (IFC-4)” (published October 28, 2020, last accessed December 16, 2020), available at https://www.cms.gov/newsroom/fact-sheets/fourth-covid-19-interim-final-rule-comment-period-ifc-4.
12 E.I. DuPont de Nemours & Co. v. Faupel, 859 A.2d 1042, 1044 (Del. Super. Ct. 2004) (affirming a workers’ compensation award where an employee suffered adverse reaction to a flu vaccine and “[t]he vaccination was funded by [the employer], administered by [its] employees, and given at [its] facilities”); Maher v. Workers’ Comp. Appeals Bd., 33 Cal. 3d 729, 735 (1983) (noting that “illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer”) (quoting Roberts v. U.S.O. Camp Shows, Inc., 91 Cal.App.2d 884, 885 (1949) (emphasis in original).
13 Centers for Disease Control, COVID-19 (Coronavirus Disease), “Frequently Asked Questions about Vaccination” (updated December 13, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html.
14 Centers for Disease Control, COVID-19 (Coronavirus Disease), “When Vaccine is Limited, Who Gets Vaccinated First?” (updated December 16, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations.html.
15 Id.