Commentary from Counsel | COVID-19 Vaccine Updates

Starting with the October 2020 issue, I have written multiple columns on the rapidly changing legal and regulatory landscape employers face regarding Covid-19 vaccines. In this article, I will address the important legislative and administrative updates that have cropped up following my last piece on this topic. Ultimately, while employers still have flexibility to make decisions related to their employees’ vaccination status, the surrounding law is as fluid as ever. Stay in touch with legal counsel to ensure you are advising and advocating for your clients accurately and effectively.

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) doubled down on its earlier guidance and reiterated that employers may require employees entering the workplace to be vaccinated. As before, employers must provide reasonable accommodations to employees with underlying disabilities, or for sincerely-held religious beliefs, that preclude vaccination. Examples of reasonable accommodations include requiring an exempt employee wear a face mask and/or submit to periodic testing or allowing for continued remote work.

The EEOC also OK’d asking employees to provide their vaccination status and creating vaccine incentive programs, but there are key considerations for both. First, while employers may ask their workers if they are vaccinated, the EEOC considers vaccination status documentation to be confidential medical information. Per the Americans with Disabilities Act (ADA), employers must store this confidential information separately from personnel files. See below for more confidentiality and privacy considerations. Second, the EEOC confirmed that employers may offer incentives to encourage employees to be vaccinated. The EEOC also noted that “incentives” can come in the form of either rewards or penalties. However, the incentive provided by the employer must not be so substantial as to be coercive.

So the EEOC has given employers the green light to mandate vaccines and inquire into vaccination status, but the EEOC is not the only relevant authority for employers to heed when making vaccine-policy decisions. To begin, states can preclude employers under their jurisdiction from either mandating vaccines or even asking their employees vaccine-related questions. Bills have been introduced in most state legislatures seeking to ban employers from “discriminating” on the basis of vaccine status. In states such as Arkansas and Montana, these bills have already been signed into law. Legislative Republicans in Wisconsin have twice tried to pass similar measures, but Governor Evers vetoed both bills. Make sure to stay in contact with legal counsel to track the status of these laws in Wisconsin and around the country.

As suggested above, there are also federal and state privacy laws implicated by an employer’s decision to collect vaccination data from their employees. To start, while employers can inquire into their employees’ vaccination status, businesses should be careful not to delve into why an employee chose not to receive the vaccine. This is important for two reasons. First, these questions could lead to the discovery of an illness or condition that requires accommodations under the ADA. Second, knowledge of underlying medical conditions could increase the chances that an employee brings a disability discrimination claim should that employee experience an adverse employment action down the road.

Next, several states have passed data privacy and security laws employers will need to consider when accumulating and storing private medical information. Most notably, the California Consumer Privacy Act (CCPA) requires, among other things, employers to provide written notice of both the CCPA and the company’s CCPA-compliant privacy policy prior to collecting personal data from employees. While the CCPA is the only law of its kind currently in effect, omnibus privacy laws are gaining traction in many state legislatures. Finally, most states require employers to take reasonable steps to protect personal information, and all states require employers to notify employees if their personal information has been exposed by a data breach.

Staying in regular contact with legal counsel will help keep you apprised of all updates to the rapidly changing legal and regulatory landscape surrounding vaccination and the workplace. This will not only help you manage your own agencies, but it will allow you to properly advise clients on the best ways to eliminate and manage risks associated with employee vaccination policies. Finally, stay tuned for more updates in this column in the months to come. This is not the first article on this topic, and it will likely not be the last.