2020 presented businesses with challenges they couldn’t have planned for. For most employers, a primary concern was preventing the spread of COVID-19 in the workplace. Many companies conducted temperature checks, asked health questions, and created brand new telecommute and hybrid workplace plans.
Now employers are faced with new questions. As a business, what are the rules and regulations around vaccines?
The Federal Government hasn’t made it easier. While the EEOC’s December 2020 guidance allows employers to require employee vaccinations, The Occupational Safety and Health Administration has thus far declined to require employers to mandate that employees be vaccinated. OSHA does, however, require that employers provide each of their employees with a place of employment that is free from recognized hazards that could cause serious harm. 29 U.S.C. § 654.
Covid-19 Vaccination Strategy
What should your business do? First, decide on a strategy:
- Require vaccinations
- Encourage vaccinations
- Do nothing
Each strategy has its pros and cons. Requiring vaccinations may protect employees and others who enter worksites, reduce employee sick days and need for medical care, reduce the risk of having to close because of a COVID-19 outbreak, and reduce the risk of civil liability or an administrative enforcement action. On the other hand, a policy of mandating that employees be vaccinated may divert resources to administering the vaccination policy, could negatively affect employee morale and retention, and may increase the risk of discrimination suits regarding accommodations.
Many organizations are considering a middle ground, encouraging employees to be vaccinated without mandating it. The benefits to this approach are some protection for employees and others who enter worksites, some reduction of employee sick days and the risk of having to close because of a COVID-19 outbreak, and some reduction of the risk of civil liability or an administrative enforcement action. The drawbacks of diverting resources and impacting morale, however, still exist.
For many businesses, doing nothing would be a risky approach. Although it may require fewer resources upfront, it does not protect employees, customers, and others who enter the worksite. It could also leave businesses vulnerable to COVID-19 outbreaks and the litigation and administrative enforcement actions that could follow. Finally, it may leave employees wondering why their employer failed to address such an important issue.
Whether your business decides to require vaccinations or only to encourage them, you may benefit from following these best practices:
- Create a clear, written policy,
- Distribute the policy to all employees,
- Explain the reason for the policy decision, and
- Provide a clear contact point for questions about the policy.
A clear, written policy that explains the business’s reasoning may help reassure employees who either would prefer that everyone in the office be required to be vaccinated, or take issue with their employer participating in their health decisions. A written policy also helps demonstrate that your business is taking reasonable steps to protect the health and safety of your employees.
Businesses who decide to encourage vaccinations but not to require them should consider the following:
- Pay individuals for time spent being vaccinated;
- Offer an incentive for vaccinations, such as a one time payment toward employee health insurance premiums;
- Ask individuals to submit verification that they have been vaccinated so the business can monitor the success of the policy; and
- Explain that employees will not face adverse employment actions if they decide not to be vaccinated
Incentives offered to employees should not be so generous that it would represent an adverse employment action for those who opt not to participate. For example, a one time payment toward an employee’s health insurance premiums may be appropriate, but a week of paid vacation may not.
Businesses that opt to require vaccinations, may want to consider these additional best practices:
- Allow individuals to receive the vaccine from the government or their health care provider;
- Pay individuals for time spent being vaccinated; and
- Provide a clear process for individuals to verify that they have been vaccinated or to seek an exemption from the vaccine requirement because of a disability or sincerely held religious belief.
The COVID-19 vaccines require that certain medical questions be asked before they can be administered, and the EEOC has concluded that asking these questions constitutes a “medical examination” under the Americans with Disabilities Act, so even if businesses decide to administer the vaccine or contract with a third party to do so, they should also allow employees to receive the vaccine from the government or their health care provider.
If individuals request an exemption because of a disability, instruct them not to disclose their disability, diagnosis or any other personal medical information on proof of vaccination or acknowledgment forms.. If an employee requests an exemption, explain that a representative of the company will reach out to discuss their specific situation, and that the company will not discharge or discipline employees who request an exemption from the policy in good faith.
After deciding which approach your company will take, drafting your vaccination policy, and preparing to distribute it to all of your employees, how do you harmonize your program goals with your operations?
Creating secure, confidential workflows that protect privacy and security when it comes to vaccines should be a priority as more and more employees receive the vaccination.
As many businesses that remained open or partially opened during 2020 learned, managing the intake of health questionnaires and temperature screenings; building new procedures for securely collecting, transferring, storing, and restricting access to that sensitive information; and providing the proper notice to individuals was a daunting task but one that could effectively be accomplished with automation technology (and was incredibly difficult without it).
The same challenges exist for collecting, managing, and protecting vaccination information – and for building responsible communication protocols and an overall wellness strategy to accompany and support your reopening program.
Fortunately, technology can help here as well.
Utilizing technology to Check and Track COVID in the workplace
There are 3 key capabilities businesses should look for in a “checking and tracking” technology platform:
- It should prevent function creep, overcollection, and misuse of the information
- It should be contactless, confidential, and capable of processing all your COVID-19 data
- It should be built with Privacy & Security by Design
To prevent function creep – the use of data for purposes beyond what it was originally collected for – and overcollection and misuse, your company should evaluate whether the technology platform is turn-key and purpose-built for COVID-19-data protocols; integrates directly into backend systems; and can identify Data Subjects by compound key hashes, not plain-text identifiers. Using a platform with hardware and software designed specifically for the task, ensuring direct transfer of the data without local storage, and adding a layer of anonymization secures the data and limits the opportunity for vaccination data to be shared with other platforms or used for any other reason.
Your COVID-19 solution should be multifunctional, not only tracking vaccinations with customizable survey questions and providing automated reminders to individuals for vaccination deadlines, but also managing the ongoing health monitoring that will be necessary for some time even as the pandemic is brought under control.
Not only does this centralize all COVID-19 processing in a single, secure system, it also enables visibility into health trends within your organization so you can quickly address them, if needed.
To that end, your process/solution should also perform symptom and temperature screening before individuals enter the workplace, and a contactless verses manual solution will streamline and expediate the entry process; decrease employee-to-employee exposure conducting checks; maintain the confidentiality of the results; and allow employees to easily self-check as they leave work, for an additional level of comfort.
Underscoring the first 2 capabilities, the platform must be built with Privacy & Security by Design, not only to protect your organization but also the individuals’ whose data you’re collecting. The EEOC allows employers to implement COVID-19 checking and tracking but, in compliance with the ADA, your company is required to keep this data separate from the employee’s personnel file with restricted access to it – again, a purpose-built solution that encrypts data and integrates directly with limited-access, secure repositories protects the data and helps meet compliance obligations.
At the same time, your technology platform should allow for authorized users to run data queries that will give you insights into trends within the dataset – understanding what percentage of your workforce has been vaccinated or what percentage on a daily screening have temperatures within acceptable thresholds will provide an understanding into the overall health of your organization. This can empower the company to create custom communications and attendance workflows based on your workforce model such as in-office/facility, at-home, and hybrid employees.
Coupling a fulsome policy with a robust process will help bring your organization that much closer to the place we all want to be – back to normal.
When it comes time to create your COVID-19 vaccination policy, lean in on the experts for help. SixFifty has developed a customized automated legal COVID-19 vaccination policy to help you ensure your workplace is safe when you are returning back to the office.
Written by Ryan Parker
Ryan is the Chief Legal Product Officer at Sixfifty and works with teams of attorneys and technologists to help make the law more accessible for businesses and individuals. Education and Experience Ryan started college at Brigham Young University – Hawaii on the road to becoming a doctor. Between going to the beach and playing college soccer and tennis for the...
Full Bio and other articles by Ryan Parker