COVID-19 Vaccination Update for Employers

Jamie M. Bossuat, Esq.

Many employers are wondering whether they can require or incentivize their employees to receive the COVID-19 vaccine. Below are a few answers to commonly asked questions. Q: Can I require my employees to receive a

COVID-19 vaccine?

A: Yes, with some limitations. First, you should evaluate whether the vaccine is job-related and consistent with business necessity. Second, you should ensure that your policies provide for employee accommodations. On December 16, 2020, the EEOC issued guidance which permits employers to require vaccinations but requires employers to provide reasonable accommodations to employees who are unable to receive the vaccine due to medical or religious reasons.

Q: How do I determine if I must accommodate a medical or religious concern?

A: This depends on the reason you are relying on for requiring the vaccine. For some jobs, such as healthcare, it may be the case that getting vaccinated is a standard qualification for performing the service. The decision must be based on objective medical information. For example, a strong factor supporting requiring the vaccine is if a government agency requires the vaccine as a condition of employing an individual in your industry. Accommodations for an employee who will not receive a vaccine must be evaluated in the interactive process with the employee. Some possible accommodations may include wearing a face mask while on-site even when no longer required for others, teleworking, or a leave of absence.

Denying an accommodation requires an “undue hardship” on the employer, which will vary based upon a business’s individual circumstances.

Q: Can I exclude someone from the workplace because their failure to receive a vaccination is a “direct threat” to the employee or others?

A: In some circumstances, yes. This is another exception to the requirement that a vaccine-related concern be accommodated.

However, the standard is very high and must be based on objective medical evidence and an individualized assessment.

The fact that employees have been working with masks for several months may make this difficult to establish.

Q: Can I encourage vaccinations even if I do not require them?

A: Yes. Much like annual flu shots in some portions of the healthcare industry, an employer can encourage a vaccine and then put in place additional safety precautions for those who elect not to receive a vaccination.

Q: Can I offer a monetary incentive for employees to receive a COVID-19 vaccine?

A: Yes, but with limitations. Employers should consider rules applicable to wellness programs and IRS requirements relating to taxability of such payments. (A payment for receiving a vaccination is likely to be treated by the IRS as an employer-sponsored wellness program.) Additionally, employers must decide how they will address employees who are not otherwise eligible for the incentive due to a medical or religious reason.

Q: Must I pay employees for the cost of the vaccine or the time spent receiving the vaccine?

A: If you are requiring the vaccine based upon business necessity, then it is likely in California that the employer would be required to cover the costs incurred by the employee in receiving the vaccine, including time spent.

Jamie Bossuat is an attorney with Kroloff, Belcher, Smart, Perry & Christopherson in Stockton. A graduate of Hastings College of the Law in San Francisco, her practice consists primarily of business and employment litigation. Ms. Bossuat has significant employment litigation experience and has represented both employees and employers in a wide range of employment matters. (Courtesy of the San Joaquin Medical Society).