COVID Vaccinations and the Workplace

For employers

I'd like to mandate vaccines for my employees. What are the first steps I should take to do so?

With COVID-19 vaccinations widely available and full FDA approvals coming though, planning for a vaccination policy should involve the following:

1. Provide employees with as much advance notice and information as possible. Ideally, this would include communicating the business case for the policy - explain why the policy is necessary, how it is good for the individual worker, the organization, colleagues and the community. Address potential points of concern. You may want to provide information on the development and safety of COVID-19 vaccines.
2. Provide a path (or multiple paths) for questions. While few employees are exempt from required vaccinations, you want to ensure employees with a need for accommodation know they have a clear path to pursue that conversation.
3. Consider whether you want to provide the vaccination onsite/with a contractor or require employees to obtain the vaccination from their own health care provider. Employers can be confident of vaccination documentation produced onsite. On the other hand, requiring employees to obtain COVID-19 vaccination from their own providers reduces the possibility of pre-vaccination screening triggering ADA restrictions on disability-related inquiries.

Our office is considering requiring employees to receive vaccines to work onsite, do we have to pay them for the time to go get the vaccine?

That depends. Receiving a vaccination is not a medical exam, but it likely amounts to medical attention. Under wage and hour law, time spent by an employee waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when the employee is working would need to be paid. OAR 839-020-0046(2).

As a general rule, employers also need to pay for time spent by an employee on tasks intrinsic to the work that they pay the employee to do. This could include time spent obtaining a COVID-19 vaccine when the immunization is required by the employer in order to perform the work.

On the other hand, if an employee simply chooses to get a required vaccination off hours and off premises, the time need not be paid. An employee that opts to receive a required vaccination off premises but during work hours could use any available Oregon sick leave. (Sick leave must be provided with pay by employers with 10 or more Oregon employees – six or more if the organization has an establishment in Portland.)

I understand we may need to make exceptions to our vaccination policy for disability or a sincerely held religious belief. Our employee presented a note from a doctor stating that our employee is allergic to an ingredient in vaccines, has had adverse reactions in the past to vaccines and therefore is advised not to get any of the three COVID vaccines. Is that a disability that requires accommodation?

Likely so. Under disability law, a person with a disability is someone who has a physical or mental impairment that seriously limits one or more major life activities. Severe allergies are usually considered disabilities requiring reasonable accommodation.

A pregnant employee has presented a note from doctor asserting that COVID vaccines could be harmful to the baby. Is the employee entitled to an accommodation, either because of disability or because of pregnancy?

Typically, pregnancy, itself, is not considered a disability – though it may trigger conditions that would be considered a disability (such as gestational diabetes, pregnancy-related sciatica, and preeclampsia). That said, civil rights laws also prohibit discrimination on the basis of sex (including pregnancy). This means at a minimum that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the same extent they are provided for other employees who are similar in their ability or inability to work (i.e., who are holding off on a vaccine on the advice of a physician). Under Oregon law, employers also need to make reasonable accommodations for pregnancy (and provide notice of anti-discrimination protections and the right to reasonable accommodations within ten days of being informed of the employee’s pregnancy.)

We have an employee who claims that he cannot receive the vaccines for vaguely stated “religious reasons,” but he refuses to provide us with additional information about the nature of his religious beliefs. Is the employee entitled to a religious accommodation?

This is a close call. Employers are required accommodate religious beliefs, practices and observances if the beliefs are “sincerely held” (and do not require an undue hardship). An employer might request some documentation showing these beliefs are “sincerely held” such as a religious treatise and/or a letter from a spiritual advisor. Recognize, however, that some belief structures may not have these. A robust conversation with the employee and a signed declaration from the employee may suffice. On the other hand, you may need to let this employee know that you will be unable to evaluate their request for an exception to the policy without some support from them describing how your vaccination requirement conflicts with the employee’s religious observance, practice, or belief.

We have an employee who claims that it is well documented that all COVID-19 vaccines authorized for use in the United States utilized fetal cell lines in their development, and his strongly held Catholic beliefs regarding abortion prevent him from receiving the vaccines. I thought the Vatican recently cleared the way for Catholics to receive COVID-19 vaccines. Is the employee entitled to a religious accommodation?

Reasonable accommodations are required on the basis of religious beliefs that “sincerely held.” It would not matter whether the belief is universally or consistently held among those who share a particular faith. With this employee’s sincerely held religious belief in view, best practice here may be to focus on a constructive conversation with the employee to determine whether your organization can make an exception to your vaccination policy that doesn’t require an undue hardship.

My employee told me early in the pandemic they didn’t want to get the vaccination because it could affect their ability to have children. Now they are claiming they have a religious exemption. How do I deal with this now?

Each request needs to be evaluated on its own merit. That said, employers have the right to request evidence supporting the need for an exception to their policy, so it is fair to ask for documentation or a statement explaining how a vaccination requirement conflicts with the employee’s religious observance, practice, or belief. From there, best practice is likely to move on and enter into the meaningful interactive process on possible reasonable accommodation with this employee.

An employee has informed us of a disability that would prevent them from getting the COVID-19 vaccine required by our policy. Do we let this person go?

Under EEOC guidance, even if an employer determines that an employee’s disability poses a direct threat, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). In other words, employers should not assume a termination is required.

Instead, engage in a good faith, two-way conversation with the affected employee around viable alternatives (“reasonable accommodations”) for reducing the risk you’ve identified of having the unvaccinated individual in the workplace. Depending on the essential functions of their position and the particular setting, it may be reasonable to allow that person to continue working from home or offer a reassignment, a change in schedule or continued use of masks. Document your efforts and review any accommodation granted on a periodic basis to ensure that it remains necessary and is still working.

When does reasonable accommodation become unreasonable?

Arguably, any accommodation is a hardship, but an accommodation becomes unreasonable if it would cause the employer an undue hardship. 

For disability accommodations, an undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available and the nature of the business. 

Accommodations of an employee’s religious beliefs or practices could create an undue hardship if they cause more than a minimal burden on the employer’s operations. Flexible scheduling, voluntary shift substitutions or swaps, job reassignments and modifications to workplace policies or practices may be reasonable accommodations. Accommodations of an employee’s religious beliefs may be an undue hardship if they are costly, compromise workplace safety, decrease workplace efficiency, infringe on the rights of other employees, or require other employees to do more than their share of potentially hazardous or burdensome work. (Equal Employment Opportunity Commission guidance on religious discrimination is available here). 

Undue hardship is not a bright-line test – it depends on the particular facts of the situation. An employer that refuses an accommodation based on undue hardship should be prepared to demonstrate that the accommodation would in fact create an undue hardship.

Our employee contract prohibits a vaccine mandate. What are other steps I can take to minimize risk of COVID-19 and/or encourage employees to get the vaccine?

Widespread vaccination is our best way forward to a return to normal. That said, certain types of workers may not be required to get a vaccine. As you noted, these include employees working under a contract that specifically prohibits making vaccination a condition of employment.

Employers can certainly continue to require measures already recommended to protect both employees and customers from COVID-19. These include requiring masks, creating physical distancing, encouraging remote work and proactive education. Of course, with the vaccine now widely available, you might consider providing additional time to workers to get the vaccine during work hours.

Can employers offer a financial incentive to employees to get a COVID-19 vaccination?

The Oregon Legislature passed HB 2818 permitting employers to offer vaccine incentives without running afoul of Oregon’s pay equity law. 

Of course, employers may continue to offer incentive programs that don’t result in a pay differential as well. (e.g., all employees might get a bonus once a certain percentage of the workforce either obtains the vaccine or is exempted because of bona fide religious conviction or a disability). Regardless, employers need to ensure individuals are not retaliated against for their religion or disability.

EMPLOYEE EDUCATION: Just as employers have been educating workers throughout this pandemic – about masks, about handwashing, about social distancing, employers can proactively educate and encourage vaccination. As more vaccines become available employers may want to consider onsite vaccination events, as many do with the annual flu vaccine.