COVID-19 Vaccinations Questions and Answers
Senior Compliance Attorney
The information surrounding COVID-19 vaccines has evolved. Click the links below to access up-to-date resources for your organization.
The availability of a COVID-19 vaccine has raised many important questions for employers to consider when making employment decisions.
The following was taken directly from the Q&A session of “Preparing for the COVID-19 Vaccine: Employer Considerations” webinar, which took place on December 16, 2020.
Please be advised that the information contained herein is subject to change.
MEDICAL QUESTIONS
Q: Did you say we could expect vaccinations to roll out to the general public in June?
A: As of right now, that is a fairly safe estimate, but it could be earlier or later. Some experts feel people will be getting vaccinated into August and September. It is difficult to predict.
Q: Where do you suggest we find the tentative vaccine rollout phases for other states?
A: Check with your local county health department or the state health department in the state where you live.
Q: If we were to mandate the vaccine, are there any recommendations for staggering the vaccines to our employees? Time period they should be give over so they are not all potentially under the weather at the same time?
A: Most of the side effects from vaccination last 24-48 hours. So if you are able to stagger vaccinations that would be a good starting point.
Q: How long after the first or second dose of vaccination will someone still be at risk of getting COVID-19?
A: There is some partial protection as early as 12 days after the first dose, but maximum protection does not occur until 7 days after the second dose for the Pfizer vaccine specifically. We’ll see if the same is true for Moderna. The maximum protection was 95%, so there is still a small chance that someone could get COVID after being vaccinated. But even if someone gets COVID after vaccination, it is almost always mild infection.
Q: Can you explain the difference between the current mRNA vaccine, and the one that JJ is developing (I forgot the technical term)
A: The JJ vaccine is not an mRNA vaccine. It uses a virus called adenovirus, to deliver the spike protein RNA instructions into cells. The adenovirus strain has been modified so that it won’t give people symptomatic adenovirus infection.
Q: The chart that showed effectiveness of the vaccine, was that after 1 dose or 2?
A: It showed the number of infections after the first dose. Those that did not get COVID-19 between doses 1 and 2 had 95% protection after getting the second dose.
Q: If you get the vaccine, you can’t pass the virus, correct?
A: We don’t know the answer to this fully. Clearly, you are less likely to get infected, so in that sense, are less likely to spread COVID-19 if vaccinated. However, we do not know yet if someone that got COVID-19 despite getting the vaccine would be able to transmit COVID-19 to others.
Q: What happens if you only get one shot?
A: You would probably get partial protection for a period of time, but not as good of protection or as long of protection as you would if you received both doses.
Q: Is this vaccine going to be a onetime only vaccine or will it be a vaccine like the “flu shot” where you have to get it every year?
A: We don’t know yet. That will depend on how long the vaccine response lasts.
Q: If you test positive for antibodies, are there different levels of antibodies? Of course we don’t know how long they last but can we feel safe from reinfection at time of positive result?
A: Yes, there are certainly different levels of antibodies, more so following natural infection than following vaccine. Unfortunately, the currently available antibody tests do not give you a level of your antibodies. The result is “positive” or “negative.” The CDC has said if you have had infection, then waiting 90 days to get vaccinated is OK, but there really isn’t a need to wait to get the vaccine.
Q: Which type of our body cells will grow the spike protein to which our immune system responds? To clarify, this spike protein production will occur one time, in response to the mRNA? Once these ‘spiked’ cells die, no future ones will be produced because the mRNA has been destroyed – correct?
A: The spike protein will be produced by the muscle cells that get injected with the vaccine. The production of spike protein is short lived and stops once the mRNA degrades, or falls apart, which is only for minutes to hours or so. Production of spike protein occurs after each dose. After the mRNA is gone, no more spike protein will be produced, but the antibodies your immune system makes will persist and protect you.
Q: In regards to age for the vaccine, is there a minimum weight required? i.e.17 year old weighs less than 100 lbs.
A: I’m not aware of a minimum weight
Q: Is there a minimum age for the vaccine?
A: For the Pfizer vaccine, it is recommended for ages 16 and up (with no maximum age). The minimum age currently for the Moderna vaccine is 18.
Q: If vaccinated or COVID-19 positive – then get exposed to someone positive – will they need to quarantine again?
A: For now, the answer is yes, you would still need to quarantine. The quarantine recommendations will probably change once more people are vaccinated and we understand better the risk of transmission from someone who has been vaccinated.
Q: If you get the vaccine, would wearing a mask still be a likely requirement, and if so, is there an idea on the timeline of masks no longer being required?
A: Yes, for now you will still need to wear a mask. We need many people to get vaccinated. The more that get vaccinated, the more the rates of infection in the community will drop. The more that rates of infection drop, the more likely we can stop wearing masks.
Q: Were there requirements or limitations on behavior (masks, social distancing, other?) that was required of participants in the vaccine study?
A: All study participants received information on how to prevent COVID-19 with masking and social distancing, but there were no special requirements.
Q: What does “emergency use authorization” mean? What makes that different that normal authorization?
A: The primary differences are the length of follow up after vaccination and the FDA review of the manufacturing processes for the vaccine (sterility, contamination, etc.). FDA required a minimum of 2 months of follow up. We are now already nearly 3 months of follow up for the Pfizer vaccine. The follow up of study subjects is still ongoing. Six months of follow up is more standard for regular FDA license, but again, very few if any safety concerns from a vaccine occur after 6 weeks. For manufacturing data the FDA has reviewed the basic aspects from Pfizer, but the full review usually takes a couple more months.
Q: I work at a food manufacturer, is there an expected timeline on when the state will let us know who is considered an essential worker?
A: I have not heard of a concrete deadline, but I think they will probably make this decision within the next few weeks. We all need to know before we get to phase 1B. I think we will be in phase 1A for the next few weeks.
Q: I work in an elementary/middle school. We have parents scared that the government is going to come in and vaccinate their children without their approval. Do you foresee the government mandating the vaccine for children?
A: I don’t think that has ever happened, and I don’t think it will happen now.
Q: Wondering if a front line worker is vaccinated but not their spouse since they may be in a different Phase, what happens if the spouse gets COVID-19, does the vaccinated front line worker need to quarantine then due to exposure from spouse?
A: Good question. I think with what we know right now, that it would still be best to quarantine.
Q: “Following CDC guidelines, anyone who has the common side effects from the vaccine would have to quarantine for 10 days from start of symptoms (or 7 days with a negative test in days 5-7).
With employees getting vaccinated and the potential side effects overlapping with COVID-19 symptoms, will there be new CDC guidance around quarantining after a vaccine? Alternatively, following current CDC, our employee could get the vaccine (twice) and have to be out from work from 14 to 20 days.”
A: The CDC has released some recommendations pertaining to that for healthcare workers. I’m not sure about non-healthcare workers.
Q: What criteria will be used to qualify “essential workers”? Do employers need to be proactive in asking to be considering as part of these group?
A: This currently remains unclear. Healthcare systems are waiting for guidance from state health officials.
LEGAL QUESTIONS
Q: Are there any limits that we need to be concerned about in offering incentives for those employees who choose to get the vaccine?
A: Employers should consult with counsel regarding the limits imposed by HIPAA with respect to rewards provided under wellness programs. Generally, there is an aggregate limit of all incentives to 30% of the single employee cost of coverage.
Q: Are there any legal concerns around offering a monetary incentive for employees to get vaccinated?
A: See above.
Q: Are you seeing employers requiring the vaccination as a condition of employment?
A: Personally, I have not seen any yet. That could/will likely change over time as the vaccine becomes more readily available.
Q: As a social service organization, can we state that clients who want to return to face-to-face services must be vaccinated?
A: This depends highly on the industry in which you work. In some cases, yes, but possibly not in others.
Q: Can an employer mandate just the COVID-19 vaccine, but not mandate other vaccines?
A: Yes
Q: Can an employer require a mandatory vaccination based on the employee’s position/work duties?
A: Yes – so long as the disability/religious exceptions are applied.
Q: Can volunteers be mandated to be vaccinated?
A: Yes.
Q: If an employer mandated the vaccination, does it open the employer up to a lawsuit if the employee has a major reaction to the vaccination and has medical issues and/or loss of work?
A: Possibly. Consider discussing whether this liability would be fully or partially covered under your WC policy.
Q: What happens if a customer requires our EE to have the vaccination before coming to their site (sales or field techs) but the EE refuses to get vaccinated?
A: Customers have the right to require this. Employers will have to have to explore ways around this, i.e., substituting another individual, shifting responsibilities, etc., and whether doing so poses an undue hardship.
Q: Can the employer legally require documentation that the employee received the vaccination?
A: Yes
Q: Can we ask our construction employees if they received the vaccine? Can we require our construction employees to get the vaccine when available?
A: Yes and yes (assuming you honor the exceptions).
Q: Can the employer require employees inform the employer that they have received the vaccination? (Assuming there is not a mandate but encouraged request)
A: Yes. Nicely, this is specifically addressed in today’s EEOC guidance.
Q: If you make it optional, can you ask employees if they have been vaccinated or not? How would an employer track, if at all?
A: Yes – new EEOC guidance discusses this.
Q: So if you don’t mandate it and people don’t want to come into the office and want to stay working from home… Can they?
A: Normal ADA analysis would apply. It would depend on whether it’s a “reasonable” accommodation or not, given the employee’s job duties, etc.
Q: Could we encourage the vaccine and require anyone who does not receive the vaccine to wear a mask when the mandatory masks order is lifted? Some hospital organizations have done this in the past.
A: Yes
Q: For religious beliefs, do employees have to sign a form??
A: No, but you can request documentation to support the religious nature of the belief. The new EEOC guidance discusses this.
Q: How would we ask the employee to prove their affiliation with a particular religion that does not acknowledge vaccinations?
A: The new EEOC guidance touches on this a bit. It makes clear that if an employer “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
Q: If an employee refuses vaccination based on religious beliefs but that particular religion is not opposed to vaccination, is this a valid argument?
A: Probably not. This would call into question whether the belief is “religious” and/or “sincere”
Q: Do you suggest a waiver so the employer is not liable if it was offered but declined?
A: Liability waivers are typically not enforceable under WI law in the employment context, so it would provide little benefit beyond having a deterrent effect on possible legal action being taken.
Q: If an employee needs to travel internationally for work, what kind of proof could/should an employer ask for to show that the employee has had the vaccine?
A: Up to the employer, but you can request proof of vaccination.
Q: If staff choose not to get the vaccine, can we tell them if they get COVID-19 we won’t pay them to be off? Currently we pay staff up to 10 days of COVID-19 pay if they are positive.
A: Probably yes, but you’d want to honor the policy with respect to those people with legitimate exceptions (disability/religion). Currently, FFCRA leave for COVID-19 illness is set to expire on 12/31/19, but it may be renewed in 2021.
Q: Is there any change for union units that bargain? Police or Fire? Since conditions of employment are spelled out under the union contract, can we still require the vaccine if we do not use termination as a possible result of non-compliance?
A: This will depend on your collective bargaining agreement. There is likely some obligation to bargain with the union, so open communication with the union is advised.
Q: What if the employee claims to contract from work? Can they claim workers comp?
A: Possibly. Will depend on the circumstances.
Q: Has there been any update on EPSLA & EFMLEA? It is supposed to end 12/31/2020 according to the first regulation.
A: No update. As of today, it ends on 12/31/20
Q: Maybe this is a clearer question: who gets to decide who is an “essential worker”? Politicians? Health administrators? Doctors?
A: It depends on the context, but typically, this is decided by either the executive (President/Governor) or the legislature (state or federal). With respect to vaccine distribution, vaccine makers and providers may also get to make determinations on this to the extent it is not prescribed by government entities.
Q: Where do we find the EEOC COVID-19 information again?
A: The EEOC COVID-19 information can be found here: What You Should Know About COVID19, ADA Rehabilitation Act, and other EEO Laws
Please be advised that this document is intended for educational purposes ONLY. This document and the information contained herein does not constitute legal or medical advice. Individuals and employers are strongly encouraged to consult their own medical and/or legal professional for specific medical and/or legal advice.
