Two COVID-19 vaccine doses, one from Pfizer, the other from Moderna, are being rolled out throughout the country with healthcare workers, first responders, other essential employees (this includes those in the restaurant, food, education, food, agriculture, manufacturing, and public transit industries), and long-term care residents and employees among the first to receive shots. People with underlying medical conditions that are at high risk for illness or death from COVID-19 and older adults will also be among the first to get vaccinated. The decision on who gets first dibs on a COVID-19 vaccine is being made by state governors in consultation with their own public health experts, with states typically following recommendations set forth by the Centers for Disease Control and Prevention (CDC).
Pfizer expects to send 25 million doses by the end of 2020, or enough to vaccinate about 12.5 million Americans, as each recipient will need two doses. Moderna says it will be able to make about 15 million vaccine doses at first, which can treat 7.5 million people (again, two shots per person).
There have been hiccups so far in the delivery of the vaccine in what is a historic immunization drive. A few states complained of holdups in getting the vaccine while several individuals have reported allergic reactions to the shot. In addition, employers have been wondering if they can mandate that their workers be inoculated as they study options to bring at-home employees back without triggering a backlash or violating federal and state employment law.
EEOC Releases Initial Guidance on COVID-19 Vaccination for Employers
The Equal Employment Opportunity Commission (EEOC) recently stepped in to provide some guidance for employers with regard to their vaccine programs including whether to make it mandatory or voluntary. Here are some of the takeaways from the EEOC guidance:
Employers who require employees to be vaccinated must allow for employees with certain medical conditions or sincerely held religious beliefs to request an exemption from the vaccine requirement by seeking a reasonable accommodation consistent with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act and any related state or local laws.
Employers may generally request that the employee provide supporting documentation to support exception requests for disability or religious reasons.
If a reasonable accommodation is not possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude” the worker from the workplace, but this does not necessarily mean that the employer can automatically terminate the worker.
In addition, employers will need to consider whether to actually administer those vaccinations or direct employees to seek out vaccines from a third party. According to the new EEOC guidance, employers who provide vaccinations to employees should be careful to avoid pre-screening questions seeking genetic information or disclosure of disabilities so as not to run afoul of the ADA or Title II of the Genetic Information Nondiscrimination Act (GINA). Many in the legal community have stated that it may be prudent for the employer, if it requires COVID vaccines, to have employees get the vaccinations from pharmacies or their personal health care providers to avoid any medical inquiries. It’s also prudent to consult with an attorney prior to implementing a workplace vaccination program to ensure compliance with the various federal and state laws and employment practices.
