Guest blog post courtesy of Danielle Smid at BrownWinick Law Firm.
As the COVID-19 Delta variant spreads, many owners have again begun looking toward additional safety measures to combat COVID-19 in the workplace. Such measures include but are not limited to mandatory vaccinations (showing proof of their vaccination status) for employees. Owners considering requiring vaccinations on their premises should do so through the contractors, i.e. require contractors to mandate vaccinations of their individual employees before being allowed to work on the premises. When determining whether to require COVID-19 vaccines (or require proof of vaccination status), owners should work with their contractors to consider the following:
1. Anti-Discrimination Statutes
The Equal Employment Opportunity Commission (“EEOC”) has provided updated guidance regarding COVID-19 vaccinations in the workplace. The updated guidance reiterates the EEOC’s original position taken in December 2020 that employers can mandate that all employees who physically enter the workplace be vaccinated. Such mandate, however, is subject to reasonable accommodation for disability (Americans with Disabilities Act) including disability resulting from pregnancy-related conditions, or sincerely held religious beliefs (Title VII of the Civil Rights Act). Additionally, the EEOC specifically noted that “because some individuals or demographic groups may face greater barriers to receiving COVID-19
vaccination”, employers with mandatory vaccination policies should be conscious of whether the policy has a disparate impact on certain employees based on a protected characteristic. Contractors may require employees in the workplace to be vaccinated subject to reasonable accommodation for disability, pregnancy-related conditions, and sincerely held religious beliefs. Contractors with mandatory vaccination policies should notify employees that requests for reasonable accommodation will be considered on an individualized basis. Owners who are requiring contractors to mandate vaccinations may have to work with the contractors on possible reasonable accommodations, i.e. those who cannot be vaccinated could wear masks while working on the premise. The guidance further notes that even a fully vaccinated employee may request a reasonable accommodation based on a disability-related concern that he or she is at risk from COVID-19 exposure. Contractors should address such a request as it would any other accommodation request and engage in
the interactive process with the employee pursuant to the ADA mandates.
2. Confidentiality/Privacy Considerations
Owners and contractors must also be cognizant of confidentiality concerns when seeking proof of vaccinations. Employee documentation or confirmation of COVID-19 vaccination is considered confidential medical information under the Americans with Disabilities Act (“ADA”). While the ADA does not prohibit employers from requiring proof of vaccination, such information must be kept confidential and stored in a medical file separate from the employee’s personnel file. Additionally, owners and contractors must limit the use of the supporting documentation and control access to such documentation. As such owners and contractors should only ask for the bare minimum of supporting documentation such as a vaccination card or survey response. In addition, owners and contractors should communicate to the employees that such documentation will be strictly confidential. Owners and contractors may have legitimate business reasons to ask employees about their vaccination status, but employers should be careful not to dig too deep into any inquiry and should avoid asking questions that may violate the ADA’s prohibition of medical inquiries that are not job related or consistent with business necessity. However, asking for proof of a CIVID-19 vaccination does not in and of itself violate the ADA in that it is unlikely to prompt the employee to provide disability-related information.
3. Vaccine Passport Prohibition in Iowa
At the end of the last legislative session, Governor Kim Reynolds signed into law a prohibition of vaccine passports in Iowa. The new law does not allow businesses or governmental entities to require customers, patrons, clients, patients, or other persons invited onto the premises to show proof of a COVID-19 vaccine. The law does not, however list employees in the category of individuals who are protected from having to show proof of a COVID-19 vaccine. As a result, Iowa employers can legally require employees to show proof of a COVID-19 vaccine as a condition of employment. Whether the passport prohibition applies to independent contractors is yet unknown. Thus, owners who intend to require vaccinations should work with the contractors to ensure that the employees of the contractors are vaccinated.
4. Vaccine Incentives
Contractors that do not mandate vaccinations may instead decide to incentivize employees to receive vaccinations. Pursuant to the EEOC guidance, employers may encourage employees and their family members to be vaccinated. In doing so, employers may provide employees and their family members with information to educate them about COVID-19 vaccines; raise awareness about the benefits of vaccination; address common questions and concerns; under certain circumstances off incentives to employees who receive the vaccines. Contractors can offer incentives for employees to voluntarily provide confirmation of vaccination, so long as no genetic information is acquired while administering the vaccines or obtaining confirmation. For vaccinations offered by the employer or its agent, the incentive offered cannot be “so substantial as to be coercive” so as to prevent employees from feeling pressured to disclose protected medical information.
While vaccine incentives are permissible as described above, Contractors should be careful when offering vaccine incentives for employee’s family members when the vaccine is offered by the employer or employer’s agent. If providing an incentive to an employee’s family member would require the family member to answer pre-vaccination medical questions, it could result in a violation of GINA which prohibits employers from providing incentives in exchange for genetic information.
5. OSHA Considerations
OSHA imposes recordkeeping requirements on covered employers for certain work-related injuries and illnesses. Vaccine-related illnesses or injuries may be covered under OSHA’S recordkeeping requirements if the vaccine is deemed to be work-related. In late May 2021, OSHA adjusted its guidance on recording COVID-19 vaccine-related illnesses or injuries
in the OSHA did not want to have any appearance of discouraging workers from getting the COVID-19 vaccine or disincentivizing employers’ efforts to have their employees vaccinated. As a result, OSHA is not requiring employers to record any side effects that workers experience from the COVID-19 vaccination, at least through May 2022.
6. Update Employer Policies
Although this is a constantly changing environment when it comes to COVID-19 guidance and policies, employers should do their best to keep employees updated on the current policies and practices when it comes to COVID-19 vaccines and other safety measures. Additionally, employers should remain agile in implementing such policies and complying with current guidance and requirements.
Guidance regarding COVID-19 is constantly changing. Brown Winick will continue to monitor and always changing environment of COVID -19. Please feel free to contact me at Danielle.smid@brownwinick.com or Brian Rickert at brian.rickert@brownwinick.com with any questions or if you would like to discuss further. Thank you!
