More Guidance from the CDC on Workplace Vaccination Programs

By Fiona W. Ong, Parker E. Thoeni and Lindsey A. White - Shawe Rosenthal LLP

January 21, 2021

As individuals beyond front-line healthcare workers are becoming eligible for the vaccine, the Centers for Disease Control and Prevention (CDC) has just released a toolkit for employers of essential workers, to join those that it previously released for medical centers/clinics/clinicians, and long-term care facilities. Although targeted for these specific employers, the resources provide information and resources that are applicable to employers generally.

The toolkits contain sample communications to management and employees, FAQs for employers and employees, sample communications, posters, social media content, and more. In addition to reiterating much of the information that we previously provided in our detailed blog/E-lert, Vaccines in the Workplace: A Practical Guide for Employers, the CDC also offered the following points of interest:

Q: Will Employees Be Required to Be Vaccinated for Work?

A: It depends. The CDC states in its Vaccine FAQs that the federal government does not mandate vaccinations, but notes that employers of healthcare or essential workers may impose such a requirement, as a matter of applicable law.  (And as we explained previously, employers in general may impose such a mandate in the context of the current pandemic – although many are choosing to encourage rather than require vaccinations). Any such mandate, of course, might be subject to exemptions as a reasonable accommodation for a disability under the Americans with Disabilities Act (ADA) or a religious need under Title VII, as we previously discussed.

Q: Should Contractors and Temporary Employees Be Vaccinated?

A: Yes. According to the CDC, companies should encourage everyone at a work site to be vaccinated – including contractors and temporary employees, including staffing agency employees.  If the company is offering an on-site vaccination program, it can open the program up to these other individuals. If there is no on-site program, it can provide information about vaccination options in the community.

Q: Should Employees Who Had COVID-19 Still Get the Vaccine?

A: Yes. It is still unknown for how long antibodies will protect an individual after recovering from COVID-19. Moreover, we note that it is unclear whether such antibodies will protect against variants.

Q: What If Employees Experience Adverse Effects from the Vaccine?

A: In post-vaccination guidance for healthcare personnel, the CDC has suggested approaches for evaluating and managing post-vaccination symptoms. In addition, employees should be encouraged to report adverse effects to the federal Vaccine Adverse Event Reporting System. Employees may also be encouraged to enroll in a new smartphone-based tool called “v-safe,” which CDC uses to check in on people’s health after they receive a COVID-19 vaccine. The CDC recommends that employees experiencing a fever should stay home pending further evaluation, which could include COVID-19 testing. If the employee’s soreness from a shot extends past 24 hours or other symptoms do not abate within a few days, the employee should be directed to stay home and contact their health care provider.

Q: How May Employers Encourage Employees to Become Vaccinated?

A: The CDC suggests that employers host a vaccination clinic in the workplace, during work hours and at no cost to employees, and refers employers to local health departments for further guidance, along with its Guidance for Planning Vaccination Clinics Held at Satellite, Temporary, or Off-Site Locations and Resources for Hosting a Vaccination Clinic. If a workplace vaccination clinic is not possible, the CDC also recommends: allowing employees to take paid leave to get a vaccination elsewhere; supporting transportation to off-site clinics; displaying posters/flyers in breakrooms, lunchrooms and high-traffic areas with information about vaccine clinic locations in the community; and use company communications (e.g. emails, newsletters, intranet, portals) to inform employees about the importance of vaccinations and where to obtain them.

More on vaccine incentives. On a separate note, the Equal Employment Opportunity Commission recently released its proposed rule on wellness programs under the ADA and the Genetic Information Nondiscrimination Act (GINA), which may have implications for workplace vaccination programs. Under these laws, employee participation in a program to promote health, through which they are required to provide medical information to the employer, must be voluntary. As the EEOC notes, pre-vaccination screening questions may seek medical information. And in its proposed rule on wellness programs, the EEOC states that too-high incentives may render participation involuntary; thus, only modest incentives – such as a gift card or water bottle – are permissible. Incentivizing employees to obtain vaccinations from their own third-party vaccine providers, however, will not trigger this limitation as the third-party, and not the employer, would be asking the screening questions. We discuss other incentive issues in our prior vaccine blog post.

In any case, employers should seek counsel before imposing vaccine requirements or setting up vaccination programs, as these issues are complicated and every-changing.