Beyond COVID-19: Vaccines and the Workplace Resources:
- Understanding Employment Law and Vaccines eBook
- Integrating COVID-19 Vaccines into Corporate Wellness Strategy FAQ
- COVID-19 Vaccines and Employer Group Health Plans FAQ
- COVID-19 Workplace Safety Self-Inventory
Visit our COVID-19 Vaccine Resource Center for more information.
Frequently Asked Questions
Can I ask an employee to provide proof of receiving the COVID-19 vaccine?
Yes. According to the EEOC (Question K3), simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA. Additionally, employer must ensure that they are consistent. Employers should not single out certain employees to require proof and should implement the same requirements for all similarly situated employees.
Will requiring the vaccine ensure that we are providing a safe working environment as required by the OSHA General Duty Clause?
It’s important to remember that at least for now, the pharmaceutical companies have not confirmed that receiving the vaccine will prevent the spread of the virus. In fact, based on the data and studies to date (January 2020), the pharmaceutical companies have confirmed that they do not yet know if a vaccinated person may carry the virus and remain contagious. Said another way, vaccinated individuals who contract COVID-19 may still be contagious to other individuals (even if the vaccine limits or prevents symptoms). Consequently, employers must continue to enforce their COVID safety programs and policies. Likewise, requiring employees to receive the vaccine (within the required limitations under Title VII, ADA, pregnancy, collective bargaining agreements etc.) does not ensure that the virus will not be transmitted in the workplace. Employers should stay tuned to the CDC and FDA guidance regarding the effectiveness of the vaccine and its impact on the transmission and contagious nature of the virus.
Is the government going to pay for the vaccine?
The Federal Government is paying for the cost of the vaccine itself, at least initially. Providers administering the vaccine may charge an administrative fee, which they are likely to do. Group health plans, with the exception of grandfathered health plans are required to pay the administrative fee without being subject to cost sharing.
Our company plan is grandfathered. Will our employees be able to receive vaccinations at no cost?
Grandfathered plans of all sizes may, but are not required to cover the vaccine, including any administrative fees. Employers with self-insured grandfathered plans will need to work with their TPA if they wish to add this to their plans. Employers with fully-insured plans will need to work with their carriers to determine how the carrier is treating vaccine administrative fees under the plan.
What type of financial incentive would be acceptable to offer as part of a voluntary COVID vaccine program?
Incentives with de minimis value would be considered a favorable option because they would meet current wellness program requirements under HIPAA and proposed under the ADA. This might include water bottles, t-shirts, or gift cards of modest value. Current and proposed wellness regulations do not provide a specific dollar amount maximum for de minimis incentives, so the examples above should be your guide. Additionally, group incentives, awarded to a division or a location, where everyone in that group receives the benefit of the reward, would also be acceptable. An example might be a catered breakfast or lunch everyone could enjoy should the group meet minimum participation levels in aggregate.
Is there a place our company can sign up or get on a waiting list to get the vaccine?
As mentioned briefly earlier in the session, there is not a master sign up list. We suggest a few things you can do to keep you abreast of vaccination opportunities. First, refer to your state health department website regularly. States will post updated information on what phase they are currently in, and what groups are currently eligible for the vaccination. Many also link out to a list of pharmacies who are administering the vaccine. Get in touch with local pharmacies on the list to inquire as to whether they are planning for onsite events, offering vouchers, or if they are keeping some type of waiting list that you can get on when the vaccination becomes more widely available. Second, encourage employees to stay in touch with their own physicians on vaccination availability. Some physicians, health systems and stand-alone vaccination providers are beginning to record interest by individual and/or company with the intent to reach back out to them directly when the vaccine becomes available.