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Considerations Regarding Mandating COVID-19 Vaccinations for Employees (as of May 5, 2021; subject to change without notice)

COVID-19 Info Hub, Update

This post is a general overview and is not legal advice and should not be relied on for any purpose, as there are complex issues involved in mandating vaccinations that are not addressed here. For more information, contact ksutherland@omwlaw.com.

Per a news release from Eagle Hill Consulting, polling conducted in April 2021 has shown that “Sixty-four percent of Seattle workers believe that employees returning to the workplace should be required to provide COVID-19 vaccination proof, 63 percent agree that employers should mandate vaccines, and 61 percent believe employers should offer vaccine incentives. Nearly half (48 percent) of Seattle workers say non-vaccinated employees should be not be permitted to work in-person with co-workers.” Below are some potential implications of employer-mandated COVID-19 vaccinations (which are subject to change without notice):

Time spent traveling to and from the vaccination site and time spent receiving the vaccination are considered hours worked. As a result:
- Employees will need to be paid for their time spent getting vaccinated and for their travel time;
- Worker’s Comp may cover any injuries or illnesses related to the vaccine; and
- If the employees are involved in an automobile accident on their way to or from the vaccination site, the employer may be liable for any injuries or property damage they cause.
Employees can use sick leave if they are unable to work due to the side effects of the vaccine.
Requiring an employee to show proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry, but employers may want to warn employees not to provide any medical information as part of the proof of vaccination in order to avoid implicating the ADA (unless the employee says that they are not going to be vaccinated due to a disability, in which case the employer will need more information to determine if the employee can be reasonably accommodated).
Employers need to provide reasonable accommodations to employees who inform their employers that they cannot get vaccinated because of a disability or because of their religious beliefs or practices unless the accommodation(s) create an undue hardship.
- As the Human Rights Commission reminds us, “The reasonable accommodation process is an interactive process, involving the employee and employer, with the goal of determining a way that the employee can do the essential functions of their job. The employer can usually require information from a medical professional about limitations and possible reasonable accommodations. If that information is necessary to evaluate the request but is unclear, incomplete, or dated, the employer normally can ask for additional medical information.” There are some limitations on asking for current medical documentation if the health care system is overwhelmed, but Washington is not currently at that point.
- Some examples of reasonable accommodations could include wearing a mask at work that provides the same level of protection from transmission as the vaccine, working from home, a temporary leave of absence, modified work schedules, physical barriers that restrict COVID-19 transmission, reassignment, etc.
- What is reasonable depends on the employee, the job duties, and the design of the workplace.
The vaccine itself isn’t considered a medical exam under the ADA, but if the employer gets any medical information about the employee during the vaccination process (such as their answers to the vaccination screening questions or as a result of a request for accommodation), that information is medical information and needs to be treated confidentially like any other employee medical record.
The workplace requirements for masking and distancing, etc., still apply in Washington State, even if employees are vaccinated.
- The only difference is that employees who have been vaccinated who have been in close contact with someone who has COVID-19 don’t have to quarantine.
Employers should be specific as to what it means to be vaccinated (e.g., that they provide proof that they received both doses of the Pfizer-BioNTech COVID-19 vaccination or the Moderna COVID-19 vaccination within the time period established by the CDC; or they received a single-dose Johnson & Johnson Janssen COVID-19 vaccination).
- If employers anticipate employees being vaccinated in other countries, determine what non-FDA-approved vaccinations would be acceptable.
Employers should decide what to accept as proof of vaccination and what documentation of vaccination to keep – for example, employer inspection of employees’ original CDC vaccination card(s); employees provide a photocopy of their CDC card(s); or if they lost their card(s), will the employer accept some other form of proof, such as a printout or screenshot from MyIR (the DOH immunization registry) or a letter from their health care provider.
Mandatory vaccination requirements probably will require bargaining if the employees are members of a union.
Employers may want to consider holding onsite vaccination clinics.
- Employers providing the vaccinations themselves should avoid getting copies of employee’s medical consent forms if possible because the forms may contain medical information protected from disclosure by the ADA and GINA (have the vaccination providers collect the forms instead).
Eligible employers with fewer than 500 employees and certain governmental employers are eligible for tax credits for paid sick leave for time spent obtaining or recovering from the COVID-19 vaccine if they adopted a paid sick and family leave plan under the American Rescue Plan Act of 2021 (ARPA).