Workplace COVID Vaccine Policies, the ADA, FMLA, and Workplace Safety

Recent EEOC guidance greenlights employers to make vaccine inquiries, offer vaccine incentives, and impose workplace vaccination requirements

With the exception of vaccines mandated by applicable regulations, employers have generally veered away from inquiring about or mandating employee vaccines. This is so despite the fact that an employee without immunity to common childhood infections is at risk of serious illness if they are exposed to a carrier. However, COVID-19 may, and in some cases should, lead employers to reevaluate their laissez faire approach for some or all employees. Employers of healthcare workers subject to the Philadelphia Paid Sick Leave Ordinance have an additional reason to ensure their workforce is vaccinated--they may be on the hook for an employee's medical costs and unlimited paid time off in the face of a serious COVID-19 infection.

Inquiries into an employee's vaccination status usually triggers two separate legal responsibilities - the ADA and the employer's obligation to maintain a safe workplace. While vaccination inquiries are permitted under the ADA, they may result in unanticipated disability disclosures or an inexperienced HR employee or manager may tread into forbidden disability-inquiry territory in their well-intentioned effort to understand the employee's aversion to vaccination. If the employer becomes aware of health information that likely triggers ADA or FMLA protections, employees in the know should be counseled on how this may impact future disciplinary action or internal policy enforcement, with respect to the affected employee.

Workplace vaccination policies require artful crafting to ensure employer risk is minimized while maintaining workforce productivity and engagement.

Workplace safety issues are triggered, usually when the employer discovers that a sizeable portion of the workplace are unvaccinated, or when certain one or more valuable employees are averse to vaccination. While an initial poll of vaccination status is useful in strategizing internal policy, it can expose employers to legal and regulatory risk, particularly if they serve unvaccinated or immunocompromised consumers. Immunocompromised employees, and employees with religious objections to vaccination, are also at risk of COVID infection from their unvaccinated coworkers. Employer knowledge about unvaccinated employees requires artfully tailored policies that minimize risk to the employer and promote workplace productivity without imposing onerous obligations on HR or management to police unvaccinated employee conduct. Employers will likely need to consider vaccination or masking mandates based on consumers served, employee work location, differentiating new employees from existing employees, and employees' ADA and Title VII rights. If employers seek to make exceptions to vaccine policies for certain staff members, they should realistically assess the risk of making exceptions that, particularly if swathes of employees are subject to discipline for their failure to comply with the policy.

To discuss your COVID vaccine policy or unique employee challenges contact us at (610) 566 0711 or send us an email.