As most employers are surely aware, the first COVID-19 vaccines are here and more are on the way. To assist in preparing for this promising development, IMA Benefits has identified many key questions and answers for employers about what to expect.
How soon will it be available?
The FDA issued an Emergency Use Authorization (EUA) for a vaccine developed by Pfizer and its partner BioNTech on Friday, December 11, 2020, and supplies of the vaccine have already begun to ship. Initial doses are expected to be available this week. There are also several other vaccines currently in development, and the FDA’s vaccine committee is scheduled to review another EUA request for the Moderna vaccine on December 17th, with others likely to follow.
Distribution of the vaccines is expected to be prioritized during the first few months to select groups of higher risk individuals, including frontline healthcare workers, people with greater risk of severe illness, and critical infrastructure workers. The CDC has indicated that vaccines should be more widely available for adults later in 2021.
How much will the vaccine cost?
The federal government has announced that it will purchase all initial supplies of the vaccine, which will be distributed through state and local health departments. Healthcare providers will be able to charge service fees for the administration of the vaccine, but as discussed below, most individuals will have those fees reimbursed by their health insurance plans. Uninsured patients will have the ability to have the fees covered by the Health Resources and Services Administration’s Provider Relief Fund.
How will the vaccine affect social distancing and other safety guidelines?
The CDC has advised that masks and social distancing will continue to be encouraged for vaccinated individuals until experts learn more about the amount of protection that the vaccine provides. As long as community spread of the virus continues, we expect mask mandates and social distancing guidelines to remain in place for the foreseeable future.
Can we require employees to be vaccinated?
A COVID-19 vaccine is not expected to be widely available until late-2021, so mandatory vaccination policies for COVID-19 will likely not be realistic for most employers until at least that time. Nonetheless, employers are generally permitted to require employees to be vaccinated. The EEOC had previously advised in its 2009 guide to pandemic preparedness that employers can require employees to get the flu vaccine. On December 16, 2020, the EEOC published further information specific to the COVID-19 vaccine, largely reiterating and expanding on its 2009 guidance.
Employers that choose to adopt a mandatory vaccination policy should first ensure that the policy is job-related and consistent with business necessity under the ADA. This may be the case in industries where employees have extensive contact with other employees and guests, or where strict social distancing is unfeasible. At worksites where infected employees are likely to put their coworkers or guests at risk, employers may have a strong case that a vaccination mandate is necessary.
Even where employers can meet this initial burden, they must still provide reasonable accommodations for employees that are unable to get the vaccine due to disabilities and for employees with sincerely held religious objections to receiving the vaccine. Employers will need to be prepared to engage in the interactive process with employees that request exemptions and consider alternative solutions to help accommodate those individuals, such as additional PPE or modified work assignments to allow for social distancing. Employers are not required to provide accommodations, however, if the accommodation would create an undue hardship on the employer or if the employee would pose a direct threat to the health and safety of others that could not be mitigated by the accommodation.
Employers should also be mindful of their obligations under the National Labor Relations Act and any collective bargaining agreements. If an employer has a union population, mandatory vaccinations may be an issue that requires collective bargaining. Even in nonunion settings, employees have the right to engage in “concerted activity” for their mutual aid and protection. Employers should be careful not to retaliate against employees who present opposition to the employer’s vaccination policy.
Finally, while a mandatory vaccination policy may be permissible, the EEOC’s previous guidance suggested most employers should encourage employees to be vaccinated, rather than requiring them to do so. Some employees may be skeptical of the vaccine’s effectiveness or feel that a mandatory vaccination policy is unnecessarily intrusive. Given these concerns and the highly politicized climate around COVID-19 issues, requiring vaccinations could lead to backlash. Employers should carefully consider all of these issues in tailoring a vaccination policy to their unique circumstances.
What steps do we need to take if we want to adopt a mandatory vaccination policy?
First, employers should consider whether there is sufficient availability of the vaccine in order for employees to obtain them. Until that time, mandatory vaccination policies are likely unrealistic.
Before such a policy is implemented, employers should develop clear policy language outlining the requirements, addressing issues such as:
- The timeframe in which employees are expected to receive the vaccine
- Documentation requirements for employees to provide evidence of immunization and procedures for submitting verification
- How employees can request an exemption to the vaccination requirement
- Whether employees will be compensated for time spent obtaining the vaccine
- Additional safety protocols for employees that do not receive the vaccine
- Information on how and where employees can obtain the vaccine in their geographic area
Because the vaccine constitutes confidential medical information under the ADA, employers should be prepared to follow the EEOC’s guidelines for safeguarding that information. The ADA requires that any medical information about an employee be stored separately from the employee’s personnel file.
Once the employer’s vaccination policy is developed, it should be clearly communicated to employees, with sufficient time for employees to obtain the vaccine and/or seek an exemption as an accommodation.
What should we do if an employee refuses or is unable to get the vaccine?
Employers may want to consider whether to require employees who do not receive the vaccine to follow additional safety protocols. For example, some healthcare employers require unvaccinated employees to wear additional PPE when they are unable engage in strict social distancing. In some circumstances, employers may also be able to accommodate these individuals by modifying their assignments or duties to minimize close contact with others. These requirements should be clearly outlined in the employer’s policies and communicated to all employees.
Can we purchase vaccines for distribution to employees?
Not at this time. The federal government has announced that it will purchase all initial doses of the vaccine for distribution through state and local health departments. As the vaccine becomes more widely available, there may be opportunities for employers to purchase doses of the vaccine to provide to employees or to set up onsite clinics for vaccine administration. However, because these vaccines tend to require super cold storage and two separate doses to be administered three or four weeks apart, employers interested in this approach will need to ensure they can coordinate appropriately.
If we implement a mandatory vaccine policy, are we required to pay for all employees to receive the vaccine?
The Fair Labor Standards Act requires employers to reimburse employees for expenses incurred on the employer’s behalf. State wage and hour laws may also create similar obligations. These are often fact-intensive issues that depend heavily on the circumstances applicable to the employer. We recommend employers implementing mandatory vaccination policies consult with qualified employment counsel to ensure they are complying with these obligations.
How will our group health plan cover COVID-19 vaccinations?
The CARES Act requires non-grandfathered plans—including fully insured and self-funded plans—to cover vaccine administration with no cost-sharing to the participant within 15 business days after the vaccine is approved. This applies to vaccines administered in- or out-of-network for the duration of the public health emergency. After the public health emergency ends, plans can apply cost-sharing for out-of-network vaccines if in-network access to the vaccine is adequate. While grandfathered plans are not subject to this mandate, those plans could still choose to cover vaccine administration without cost-sharing, subject to stop loss approval.
A great article can be found here sharing similar thoughts. We encourage employers to take a thoughtful approach with the help of counsel.
This material is for general information only and should not be considered as a substitute for legal, medical, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.