Medical experts say that the COVID-19 vaccination is a critical step to a return to normal. New cases are on the rise nationally, driven by Delta variant, summer socializing, lifting of restrictions and unvaccinated individuals. “While the COVID-19 vaccines are widely available in the U.S., as of July 2021 just 49% of Americans over the age of 12 are fully vaccinated. This leaves half of our population vulnerable to variants of the virus,” says CareHive Medical Director Dr. Suneet Singh. However, whether or not private employers can legally and ethically require employees to provide proof of vaccination before returning to work is still a gray area.
Related: COVID-19 Vaccine: How It Works
Even though the FDA granted emergency use authorizations (EUA) for the Pfizer/BioNTech and Moderna vaccines in December 2020, the clinical trials the FDA will rely upon to decide whether to license the vaccines under a biologics license application (BLA) are still underway and are designed to last for approximately two years to collect adequate data to establish if these vaccines are safe and effective enough for the FDA to license.
Some Employers Are Requiring COVID-19 Vaccines for Return to Work
While organizations are free to encourage their employees to be vaccinated, federal law dictates that, until the vaccine is licensed by the FDA, individuals must have the option to accept or decline to be vaccinated. Companies like Facebook, Intel and Cisco have announced that returning employees will not have to be vaccinated, but all are strongly encouraging employees to do so.
However, some employers are starting to require Covid-19 vaccines for employees returning to work. Rutgers University became the first university to mandate them for students and employees. In April, Salesforce announced that it plans to bring people back to work starting in May and employees who return will have to provide proof of vaccination.
So how are they able to do so? Two reasons: (1) According to the CDC, If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof. (2) The caveat for return to work policies that require vaccination is that employees who choose not to be vaccinated may continue to work remotely until they are vaccinated.
Mandatory policies trigger accommodation options under the ADA and some legal risk depending on what actions an employer will take if an employee refuses the vaccination. Employers with mandatory policies will have to make some exceptions (medical conditions or pregnancy, religious objections, etc.). Employers cannot legally terminate employees for not getting the vaccine, and working from home is an accommodation.
How to Create a COVID-19 Return-to-Work Policy
In order to return to work safely, employers can create a return-to-work plan that reduces liability and retains valuable employees by:
- Encouraging vaccinations through internal communications or educational events.
- Offering paid time off for employees to get the COVID-19 vaccine and for possible side effects.
- Defining accommodations for employees who do not plan to get vaccinated (for example, moving an employee’s physical location in the office that allows them to maintain social distancing or allowing employees to continue to work from home).
- Making it clear that the decision to receive the vaccine is voluntary.
- Planning for exemptions (pregnant women, religious exemptions, medical exemptions for individuals with allergies to one of the vaccine components).
- Maintaining social distancing and other safety protocols (this is especially important for employers with essential workers who choose not to get vaccinated).
- Ensuring that your policy aligns with local health regulations and other employment policies, such as collective bargaining agreements.
The COVID-19 vaccine is deemed safe by the FDA (as EUA) and the CDC. “There is scientific evidence since the rollout of the vaccine that it greatly diminishes the risk of transmission,” added CareHive’s Dr. Singh. “The cost of the vaccine is covered, regardless of which health plan an employee has selected. State and local governments have launched programs to cover the cost of the vaccine for uninsured individuals. However, there will still be people who do not want to (or cannot) get vaccinated and employers should plan for that scenario.”