Publications
February 9, 2021

Answering Employer COVID-19 Vaccination Questions

As COVID-19 vaccines become more readily available, employers are faced with big questions. Can we mandate vaccines for employees? How do we manage a return to work? Preti Flaherty's Peter Callaghan breaks down the answers to some of the most frequently asked questions.

May we mandate the COVID-19 vaccine for our employees?

Yes.  It is permissible but employers should carefully analyze whether they want to mandate vaccination or strongly encourage it.  A mandate may implicate the ADA, Title VII, GINA and others.  If an employee voices a religious objection or is unable to be vaccinated on account of a disability, an accommodation excusing the employee from the vaccine requirement may be in order.  A mandate may also lead to morale problems or present difficult decisions about handling those who do not comply. The EEOC issued a guidance on December 16, 2020 that should be consulted.

May we offer incentives to employees to receive the vaccine?

Yes.  Employers considering incentives, such as time off, cash payments or gifts, should review whether such a program may be viewed as discriminatory.  The ADA restricts incentives as part of wellness programs and screening questions that elicit medical information may trigger the ADA.  Consider how to handle those who have a religious objection to the vaccine or who are unable to be vaccinated due to a disability:  should those employees nevertheless receive the incentive.  Attempting to screen those employees for why they are not vaccinated may lead to impermissible medical inquiries. The EEOC was asked for guidance this month by the business community and may provide the guidance to address these thorny issues.

How do we treat employees who do not receive the vaccine?

Carefully.  The answer depends on the reason why the person is not vaccinated despite being eligible.  If someone refuses, that person could be prevented from coming to work and could be terminated.  But if the person is not vaccinated due to a religious objection or medical condition, the employer should take steps to explore whether and how to accommodate that person, such as restructuring the work area or work schedules or allowing for remote work.  The traditional accommodation rules apply (is it a hardship or is there no viable accommodation) and only after exhausting all options should an unvaccinated employee be terminated. Employers should avoid asking questions that improperly elicit medical information and consider the employer may not want to know the reason someone has not received the vaccine. To protect against these traps, train personnel on what constitutes an impermissible medical inquiry and include warnings to employees that they should not inadvertently disclose protected medical or genetic information.

Is it permissible to require proof of vaccination?

Yes.  But strongly consider why that may be requested (is it to relax certain safety practices for example) and how to handle employees who decline to provide the proof.  While it may be a valid policy, enforcement may be difficult because it could lead to disputes over religious considerations or medical conditions.  If someone declines to provide proof, strict enforcement of all safety guidelines may be the safest response.

Must employers continue to follow safe practice guidelines?

Yes.  Everyone remains at some risk at this time.  Those who have been vaccinated are protected, but they may still transmit the virus.  And the science is uncertain about whether the vaccine is completely effective against variants.  Some employees may not be vaccinated and remain at risk.  At present it is unknown how long those who have been infected and recovered are immune and when they could be re-infected.  The best practice to maintain a safe workplace for all employees and visitors is to continue to follow the federal and state guidelines, including use of face coverings, physical distancing, signage, cleanliness, remote work, travel restrictions and others. OSHA issued an updated guidance on January 29, 2021 recommending that employers continue to employ safety measures for both vaccinated and unvaccinated employees.  The CDC also recommends continued adherence to these safety measures.

Firm Highlights

Press Coverage

Should workers wary of COVID-19 vaccines be forced to take one for the team?

As COVID-19 vaccinations become more readily available, should employers be legally allowed to mandate vaccination for all employees? Maine employers are wrestling with the choice of whether or not to mandate employees be vaccinated...

News

Preti Flaherty Partnership Announces Promotion of Moppin, Rideout, White to Partner

Preti Flaherty is pleased to announce that the firm’s partnership has named three new partners: Sara N. Moppin, Laura A. Rideout, and Emily T. White.  Each attorney stands out as a distinguished practitioner within...

Publication

How to comply with Maine’s new paid leave law

Fittingly, “Vacation Land” is among a small contingent of states that have a paid leave law on the books.  Maine, however, is somewhat unique in that the paid leave afforded under the new law...

Publication

Preti Flaherty COVID-19 Resources

In response to the ongoing COVID-19 pandemic, Preti Flaherty's attorneys have maintained a constant stream of the most up-to-date information and resources for our clients, business partners, and others struggling to navigate these complex...

Press Coverage

Maine blazes workplace trail with earned paid leave requirement

In March of 2019, Maine became the first state in the nation to adopt an earned paid leave law, meaning that for every 40 hours worked, an employee banks one hour of earned paid...

Event

Understanding and Navigating the She-cession

New employment data shows that women are 1.8 times more likely to have left or lost their job due to COVID-19. Between remote schooling, daycare closures, and lost support systems, women have been forced...

Publication

DOL Provides Guidance on Exemption from Paid Leave for Small Businesses

The FFCRA requires certain employers to provide paid sick leave and expanded FMLA benefits due to COVID-19 but provides that businesses with fewer than 50 employees may be exempt if the obligation would jeopardize...

News

U.S. News – Best Lawyers Ranks Preti Flaherty Among 2021 Best Law Firms

Preti Flaherty has been named among the 2021 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...

Event

From Augusta: A Legislative Update for HR Professionals

On March 13, 2020, Maine Senate President Troy Jackson and Speaker of the House Sara Gideon issued a joint statement to the 129th Maine Legislature signifying their intention to suspend the remainder of the...

Event

From Concord: A Legislative Update for HR Professionals

As the COVID-19 pandemic continues, all legislative activities in the state of New Hampshire, with a couple of exceptions, will be handled remotely. Several employment-related bills will be considered and voted on during this...