Return-To-Work Vaccination Policies: What They Should, and Should Not, Say

As we emerge from the COVID-19 pandemic, employers are developing plans, protocols and policies for bringing employees back to work in the safest way possible. One of the most important policies being considered by employers would address one of the most common topics of concern for employees – vaccinations. Once an employer decides to create a vaccination policy, the major question is what should and should not be included in the policy. Employers must wade through a complex mix of legal, regulatory, operational, and employee relations factors when drafting a vaccination policy.

Kristen Gallagher, Chair of the Employment & Labor Law Practice Group at McDonald Carano, has been assisting employers of all sizes and types with their questions about vaccination policies. Below, Kristen shares her insights on the who, what, where, when, why and how questions that must be addressed in vaccination policies. Kristen also provides important words of caution about accommodation flexibility, employee privacy, proof of vaccination, and employee communication. Kristen also provided information in an article titled “What Should Be in a Vaccination Policy?” published by the Society for Human Resource Management.

1. Why does the employer have a vaccination policy?
2. Where and When does the policy take effect?
3. Who must comply with the policy?
4. What are the exemptions to the policy?
5. How are employees’ rights protected?
6. Words of caution about accommodation flexibility, employee privacy, proof of vaccination, and employee communication.

1. Why does the employer have a vaccination policy?

• Explain the employer’s perspective of the purpose and benefits of COVID-19 vaccination as it relates to the employer’s workplace. Provide sources of information where employees can research different vaccines, including availability, efficacy, possible side effects, and risk considerations.
• Clarify that the employer’s other mitigation protocols, such as social distancing and handwashing, are not replaced by vaccination and that the employer continues to follow ongoing CDC, OSHA, and other state and local guidance on disease control measures.

2. Where and when does the policy take effect?

• Identify the physical locations (or portions of workplace facilities) that are covered by the policy.
• Provide a clear start date for implementation of the policy and preferably indicate the policy continues until further notice. State that the employer follows local, state and federal mandates and guidelines and, therefore, the employer may change both the time frame of the policy and the language of the policy at any time to comply with such government requirements.

3. Who must comply with the policy?

• Specify if the policy is voluntary or mandatory, and identify the employment positions that are covered. Check state or local applicable laws that may prohibit mandatory vaccination policies. Collective bargaining agreements also may create additional factors to consider.
• Specify what positions are excluded by the policy, such as permanently remote employees, and who may be differently impacted such as employees in hybrid work models.
• Specify whether there are any procedures, such as where employees can get the vaccine, whether they can get (or must) get vaccinated during work hours, and what proof of vaccination is required to comply with the policy.
• Communicate the compensation and reimbursement policy regarding vaccination costs or time spent getting vaccinated, and how employees can seek payment. For mandatory policies, include information that the time becoming vaccinated is compensable. (29 CFR § 785.43)

4. What are the exemptions to the policy?

• Explain the employer’s policies on accommodations and exemptions from the vaccination policy.
• A mandatory vaccination policy should explain the implications of noncompliance, as well as identify a mechanism for employees to request a reasonable accommodation if they cannot be vaccinated due to a disability or sincerely held religious belief. The policy may inform employees that the law does not require employers to provide a reasonable accommodation if it would cause an undue hardship on the employer.
• Provide contact information for who handles accommodation requests.

5. How are employees’ rights protected?

• Assure employees that their medical and health information is confidential.
• Provide a mechanism for employees to report violations of the policy and raise concerns about related health and safety issues.
• State that the employer prohibits retaliation against individuals who seek an accommodation or exemption from the policy requirements, report a violation of the policy, or express any other safety complaint or concern in good faith.
• Reinforce the employer’s anti-discrimination policy and that the employer applies and enforces its vaccination requirements and exemptions in a non-discriminatory manner.

6. Words of caution

• Accommodation Flexibility — While the EEOC has suggested that employers may consider creating “flexible” policies which would allow for accommodations that are not for an ADA-covered disability, employers should take a very cautious approach in deciding whether to include this in a vaccination policy. Employers must ensure that any policies, procedures and practices for implementing such flexibilities are applied consistently to avoid disparate treatment of a protected group under Title VII of the Civil Rights Act of 1964.
• Employee Privacy — A vaccination policy should not include any requirement that an employee provide information about the employee’s medical, physical, genetic or mental health so as not to implicate or violate employee’s rights under Title VII, GINA or the ADA. Instead, a policy should only ask employees to provide their name and the vaccination place and date(s).
• Proof of Vaccination — Screening questions that ask an employee to disclose their vaccination status could result in a disclosure of a disability. Asking an employee to show proof of vaccination would not violate the ADA, but asking for reasons why someone is not vaccinated could pose a problem. Be clear in requests for vaccination status and be prepared to establish that the questions are job-related and consistent with business necessity. The EEOC explains business-related as having a basis to believe that, absent vaccination, the employee will pose a direct threat to the safety of other employees or to the employee. Fully review permissible and impermissible disability-related inquires relating to employee vaccination status.

Communication — Failing to adequately communicate policies and procedures is an easily avoidable oversight. It is important to communicate so employees understand expectations and have an opportunity to ask questions, navigate any requirements and voice concerns.

About McDonald Carano

McDonald Carano has been shaping Nevada’s legal, business, and policy landscape since our founding in 1949. With more than 60 lawyers and government affairs professionals working from offices in Reno, Las Vegas, and Carson City, we are Nevada’s law firm for business. Our local, national and international clients include Fortune 500 corporations, fast-growth and mid-market companies, entrepreneurs and startups, non-profit organizations, government entities, and high-net-worth individuals. Our attorneys deliver cross-discipline, one-stop, business law and government affairs counsel. Please visit mcdonaldcarano.com

Media Contact

Mark Buckovich

mbuckovich@mcdonaldcarano.com
702.257.4559

Kristen T.
Gallagher

Partner Employment & Labor LawCo-Chair kgallagher@mcdonaldcarano.com Phone702.873.4100 Fax702.873.9966 V-Card PDF (Print) Learn More »