COVID-19 Vaccine Questions & Answers
Senior Compliance Attorney
There are privacy, incentivization, and risk management concerns surrounding the COVID-19 vaccine that employers must take into consideration before creating guidelines for their organization.
Please be advised that the information contained herein is subject to change.
The answers to these questions were last updated on October 5, 2021.
Q: If our county lifts the mask mandate, can we follow suit and lift the mandate in the office?
A: Currently, a number of Wisconsin cities and counties have indoor mask mandates, including Madison/Dane County and the City of Racine. Other municipalities are currently considering re-implementing an indoor mask mandate due to rising numbers and the emergence of variants.
Even in municipalities without a mask mandate, employers should still consider updated guidance from the CDC and OSHA which recommends that all individuals (vaccinated and unvaccinated) wear masks in public indoor settings in areas of substantial or high transmission. To understand the level of community transmission in your area, please visit this CDC page.
Q: Can you require un-vaccinated employees to wear different PPE than those employees who are vaccinated? For example a mask and a shield for those un-vaccinated? Or if you remove the mask mandate, can we require that for only those who are un-vaccinated?
A: OSHA currently recommends that all individuals (vaccinated and unvaccinated) wear a mask in public indoor settings in areas of substantial or high transmission, which includes most Wisconsin counties. See: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov). Employers deviating from OSHA’s guidance should consult with their legal and insurance advisors to evaluate their specific situation and related risks.
Q: When an employer decides to not mandate vaccines can they require their employees to tell them whether or not they have been vaccinated?
A: The employer can ask the question, but employees are not required to answer.
Q: If an employer asks employees whether they are vaccinated, is that information covered under HIPAA?
A: No. However, an employer should keep this information confidential.
Q: Can employers require employees to provide verification from a medical professional that their disability prevents them from being vaccinated?
A: Yes. Employers could ask the employee to obtain the information from their health care professional and provide it to the employer. An employer will need the employee’s HIPAA authorization to request such information directly from a health care professional.
Q: Can an employer mandate vaccinations for only certain groups of their workforce? For example, employees that travel regularly as part of their job or only customer facing employees, etc.
A: This is likely legally permissible so long as the distinction is based on legitimate business factors (such as customer facing) and the employer makes the legally required exceptions from its mandate. However, employers should thoroughly evaluate whether this will create significant employee morale issues or divisions between employees. Also, implementing a mandate for only certain groups of employees may make it more difficult to establish that providing exceptions to that mandate or allowing unvaccinated employees onsite would pose an undue hardship or direct threat, as the employer already has numerous unvaccinated employees onsite.
Q: Can employers request a copy of the employee’s COVID vaccine record and place it in their medical file?
A: Yes, an employer can ask employees to provide a copy of their vaccine card. It must be treated as a confidential medical record under the ADA and maintained separately from the employee’s personal file.
Q: Please address self-insured employers and PHI for vaccine.
A: Unless the information regarding the vaccine is generated or provided by a covered entity under HIPAA, it is not PHI. If the vaccine information is coming from the self-funded medical plan (for instance in the form of a claim), then it would be considered PHI.
Q: Can we ask an employee for proof of vaccine in order to verify and pay the FFCRA leave pay for recovery from vaccine?
A: Yes, but use caution. Guidance from the DOL cautions employers on requesting proof for purposes of FFCRA leave that may be too burdensome to obtain. An attestation would suffice.
Q: Would an employer’s need to create a return to work plan be a “legitimate business purpose” for asking an employee if they have been vaccinated?
A: Yes, it is legally permissible to ask employees to voluntarily disclose whether they have been vaccinated. However, if the employer is not mandating the vaccine, the employee is not required to answer.
Q: How about employers with independent contractors? Can they require vaccinated individuals to wear masks and follow other safety measures when on a business premises?
Q: What if an employee’s job includes periodic close contact with people with health vulnerabilities and that employee chooses not to get vaccinated? What is a good way for an employer to consider handling that?
A: That is a factor an employer may consider in deciding whether to mandate vaccines for its employees. Also, if an employer is mandating the vaccine, the employee’s close contact with vulnerable individuals would be relevant factors in evaluating whether excusing the employee from the vaccine mandate is an undue hardship and/or poses a direct threat.
Q: If an employer does not mandate the vaccine for employees but encourages it, can the employer exclude unvaccinated employees from large group events (such as an expo) and only take vaccinated employees?
A: This is likely legally permissible, provided that exceptions are made for individuals unable to be vaccinated due to a protected characteristic, such as disability or sincerely held religious belief. However, permitting only vaccinated employees to attend may negatively impact team cohesion and employee morale. Further, making a distinction in the absence of a general vaccine mandate may lead to concerns from employees that the employer is imposing these requirements on ad hoc or discriminatory basis. We would recommend that an employer discuss the benefits and risks of this approach with its legal and insurance advisors and implement a policy in advance outlining the events or job activities that may be restricted or affected by vaccination status.
Q: We are a union employer and am curious, could a union decide to mandate a vaccination?
A: First review the applicable language of the labor agreement to determine if it already gives the employer the right unilaterally set policies or enact safety measures. Absent applicable language giving the employer the right to unilaterally act, the employer would likely be required to bargain with the union over its decision to implement a vaccine mandate.
Q: If we do not mandate the vaccine, but need to know for quarantine timeframe purposes, can we legally require that an employee let us know if they have been vaccinated?
A: If the employee wants to be excused from quarantine requirements because they are vaccinated, the employer can ask them to provide proof. If the employee refuses to answer or provide proof, the employer can require them to serve out the quarantine periods as if unvaccinated.
Q: Can the employee log into the Wisconsin immunization registry to show proof if they do not have their card?
A: The employee could provide a print out of information from the WIR as proof of vaccination status. However, the employer should not log-in or access that info on the employee’s behalf. Also, the employer should only receive info on whether the employee has received the COVID-19 vaccine; not other immunizations. Finally, community vaccination clinics may not handle uploading the vaccination proof to the WIR. Accordingly, employees who have received their vaccines at such sites may not be able to provide proof from the WIR.
Q: If we are not mandating employees get vaccinated are we required to pay them if they leave work to receive the vaccine?
Q: If encouraging but not mandating vaccine, can employer require employees who are not vaccinated be regularly tested and provide proof?
A: Yes, this is likely legally permissible. Some employers (including the federal government) looking to take action short of an absolute mandate are requiring employees to either be vaccinated or, alternatively, submit to weekly COVID-19 testing. See: FACT SHEET: President Biden to Announce New Actions to Get More Americans Vaccinated and Slow the Spread of the Delta Variant | The White House. An employer should engage in the interactive process with any employee who claims they are unable to be vaccinated or test due to a protected characteristic such as disability or sincerely held religious belief.
Q: Could an employer deny FFCRA leave to an unvaccinated employee who has to quarantine?
Q: Can an employer state in their COVID-19 policy that if an employee refuses to get tested for COVID as a requirement of the policy, based on a daily screening, that its considered a voluntary termination of employment?
A: Because the EEOC has opined that the pandemic poses a direct threat, an employer can generally require that an employee test negative for COVID-19 as a condition of returning to work onsite. We therefore think it is permissible for an employer to state in its policy that employees may be required to submit a negative test as a condition of returning to work and that refusal to test may be considered job abandonment voluntary termination. However, before taking any employment action, the employer should engage in the interactive process to determine the basis for the employee’s refusal to test, and it may be required to provide reasonable accommodations for employees who refuse/are unable to test based on a disability or sincerely held religious belief.
Q: Can an employer charge unvaccinated health plan participants more for health insurance premiums?
A: If the “incentive” (or surcharge) is in any way tied to the health plan, it is most likely considered part of a wellness program and governed by the HIPAA non-discrimination requirements as applicable to health contingent wellness programs. All requirements would need to be followed, including the 30% cap on rewards and the Reasonable Alternative Standard (RAS). Employers should also keep in mind ACA affordability requirements for premiums as applicable to full-time employees.
WELLNESS INCENTIVES FOR VACCINATION
Q: What sorts of incentives for vaccination are acceptable?
A: The EEOC’s guidance on incentives states that where an employer (or its agent) is administering the vaccine to employees, any incentives provided may not be “so substantial as to be coercive.”
Conversely, where the employer is merely asking the employee to provide proof of receiving the vaccine elsewhere in the community (e.g., by doctor, pharmacy, or community vaccination site), that incentive limitation does not apply, and the employer could provide more generous incentives. See K.16 & K.17: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov).
Q: Would 8 hours of PTO be acceptable?
A: Yes. For an employer administering the vaccines to its employees, we believe 8 hours of PTO would not be considered so substantial as to be coercive. Employers who are merely asking employees to provide proof of vaccination they received on their own from a third party are not subject to the limitation that incentives not be coercive.
Q: Do we risk discriminating against those with religious or other exemptions?
A: Yes, individuals unable to get a vaccine due to a protected characteristic (religion or disability) may claim that an incentive program is discriminatory. For this reason, we recommend providing alternative methods of qualifying for the vaccine for individuals unable to obtain it due to disability, religious beliefs, or pregnancy.
Q: Do you have any suggestions for what kinds of alternative employers could use for employees who can’t get vaccinated?
A: Completion of COVID safety webinars or submission to COVID testing on reasonable intervals.
The preceding questions were taken directly from the Q&A session of webinar facilitated by Karen Breitnauer of M3 and Annie Eiden of Godfrey & Kahn, S.C. – which focused on employer considerations regarding COVID-19 vaccines.