Keenan Briefings

Briefing

Vaccine Mandates and the Workplace: Where We Stand Currently

• The EEOC issued guidance regarding the discretion employers have with implementing vaccine mandates for their workforces
• Companies are within their rights to require employees to take the COVID-19 vaccine if they intend to physically enter or return to the workplace as long as they are compliant with workplace laws
• Employers may assess a premium surcharge for unvaccinated employees participating in an employer-sponsored health plan
• Wellness plans with incentive programs to encourage vaccine uptake are subject to the same rules which govern other wellness plan incentives and should be undertaken with careful planning

Over the course of the pandemic we have blogged fairly extensively about the evolution of COVID-19 vaccines as it pertains to the workplace and health plans generally, capturing not only the progress made in the area but focusing on employer-sponsored vaccine incentive programs and mandates as well. In light of increased employer interest in vaccine mandates and premium surcharges as the Delta variant raises infection rates, we felt that a refresher was appropriate and timely.

Back in May, the Equal Employment Opportunity Commission (EEOC) issued guidance that sought to answer many questions surrounding COVID-19 vaccinations and the implications on the workplace. We discussed the particulars here as it pertains to incentives that employers could offer to employees who receive the vaccine (the “carrot” approach, rather than the “stick”). The other major takeaway from the EEOC’s guidance is that, while employers must certainly comply with the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964, and other related workplace laws, companies are within their rights to require employees to take the COVID-19 vaccine if they intend to physically enter or return to the workplace. Likewise, employers may assess a premium surcharge for unvaccinated employees participating in an employer-sponsored health plan, requiring them to pay more per month for insurance than their vaccinated colleagues. In practice, this would work similarly to the surcharge applied to tobacco cessation programs for smokers vs. non-smokers.

We first went into detail regarding vaccine mandates here. However, this was prior to the EEOC’s aforementioned May updates, the implementation of President Biden’s stricter vaccine guidelines for federal workers and contractors and mandates for nursing home workers, the Supreme Court of the United States wading into the vaccine discussion, and before many large companies such as Disney, Facebook, Google, and numerous others formally put their own vaccine mandates in place. Further, the Department of Justice (DOJ) has weighed in with the issuance of a memo on July 6, 2021. Although not legally binding, the DOJ’s opinion echoes the EEOC’s guidance regarding the discretion employers have with implementing vaccine mandates for their workforces, noting that employers are not prohibited from doing so simply because the various COVID-19 vaccines are only available due to Food and Drug Administration (FDA) “emergency use authorization” at this time.

Employers will still want to have carefully thought-out policies in place to address employees who object to receiving the vaccine due to their sincerely held religious beliefs and practices or for disability-related reasons. As per Title VII requirements, reasonable accommodations should be made to account for the objections of these employees, unless doing so presents an undue hardship.

Employers will also need to take members of unions into account, since employees represented by a union may have standing to object to an employer-sponsored vaccine mandate unless an agreement is reached otherwise.

Employer-sponsored wellness programs which include a medical plan requirement and/or feature a disability-related inquiry component must be completely voluntary in order to comply with the ADA. As we move into 2022, some wellness plans are working on incentive programs to encourage vaccine uptake. Those incentive programs are subject to the same rules which govern other wellness plan incentives and should be undertaken with careful planning and compliance processes in place.

Federal guidance concerning vaccine mandates has already sparked several legal challenges thus far, with many more presumably to come. As has been the case for the last 18 months, the legal and public policy responses to the COVID-19 pandemic continue to evolve as facts on the ground change. We will continue to monitor the situation for any updates and provide additional guidance as applicable.

For additional support you may contact your AssuredPartners Account Manager or Sales Executive. Employers may wish to consult with Labor/Employment counsel to ensure that their labor practices are consistent with the ADA, GINA, and EEOC guidance.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.