COVID-19 Vaccine Webinar Questions & Answers | M3 Insurance

Stay Informed! Employer Considerations Surrounding:  COVID-19

COVID-19 Vaccine Webinar Questions & Answers

COVID-19, News/Education

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.

The following was 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.

Please be advised that the information contained herein is subject to change.

MASK QUESTIONS

Q: If our county lifts the mask mandate, can we follow suit and lift the mandate in the office?

A: At this point, OSHA continues to recommend that all employees, including vaccinated employees, wear masks. See Number 15:
https://www.osha.gov/coronavirus/safework#:~:text=There%20is%20no%20OSHA%20standard,serious%20physical%20harm%20or%20death. Also, OSHA is expected to issue a temporary rule that will require masking indoors in the near future. We recommend that employers continue to require employees to mask at work until OSHA and/or CDC guidance changes.

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: At this point, OSHA recommends against applying different standards for vaccinated and unvaccinated employees and continues to recommend that all employees, including vaccinated employees, wear masks. See Number 15:
https://www.osha.gov/coronavirus/safework#:~:text=There%20is%20no%20OSHA%20standard,serious%20physical%20harm%20or%20death. Also, OSHA is expected to issue a temporary rule that will require masking indoors in the near future. We recommend that employers continue to require employees to mask at work until OSHA and/or CDC guidance changes.

VACCINATION QUESTIONS

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 would not be required to answer.

Q: If an employer asks employees whether they are vaccinated, is that information covered under HIPAA?

A: No. However, the 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. We would recommend asking the employee to obtain such 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, we would recommend against this approach for numerous reasons, including: (1) the science is unclear whether vaccinated employees can still transmit the virus; if you require certain employees be vaccinated but such employees are still regularly interacting with unvaccinated employees, they may still transmit the virus to customers and co-workers; (2) the employer would likely be unable to establish that providing exceptions to its mandate or allowing unvaccinated employees onsite would pose an undue hardship or direct threat, because it already has numerous unvaccinated employees onsite; and (3) it would create significant morale issues or divisions between employees.

Q: Can employers request a copy of the employees 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 personnel 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 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?

A: Yes.

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: We recommend against this based on OSHA’s guidance that employers should not distinguish between vaccinated and unvaccinated employees in their terms and conditions of employment. See Number 15: https://www.osha.gov/coronavirus/safework#:~:text=There%20is%20no%20OSHA%20standard,serious%20physical%20harm%20or%20death.

Q: We are a union employer and am curious, could a union decide to mandate a vaccination?

A: No, a union cannot unilaterally set the terms and conditions of employment. However, absent applicable language in a labor agreement 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?

A: No.

Q: If encouraging but not mandating vaccine, can employer require employees who are not vaccinated be regularly tested and provide proof?

A: A: We recommend against this based on OSHA’s guidance that employers should not distinguish between vaccinated and unvaccinated employees in their terms and conditions of employment. See Number 15: https://www.osha.gov/coronavirus/safework#:~:text=There%20is%20no%20OSHA%20standard,serious%20physical%20harm%20or%20death.

Q: Could an employer deny FFCRA leave to an unvaccinated employee who has to quarantine?

A: No.

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.

WELLNESS INCENTIVES FOR VACCINATION

Q: Would nominal value be considered a reduction in medical premiums should they complete that as well as other wellness initiatives?

A: It depends on the amount of the premium reduction. We would recommend keeping it below $50 until we get further guidance from the EEOC.

Q: Do you have any suggestions for what kinds of alternatives employers could use for employees who can’t get vaccinated?

A: Completion of COVID safety webinars or submission to COVID testing on reasonable intervals.

Q: What sort of incentives for vaccination are acceptable? 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: Would 8 hours of PTO be considered de minimis? Not requiring but encouraging and considering incenting employees to get.

A: We cannot say for certain without further guidance from the EEOC. However, we believe 8 hours PTO is a low-risk approach and that employers would have a strong argument it is de minimis.

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