Weekly Review: COVID-19 Legal and Ethics Issues – May 10, 2021

Weekly Review: COVID-19 Legal and Ethics Issues – May 10, 2021

Can an Indiana employer require Covid-19 vaccination as a condition of employment?

As a general rule: Yes, a private employer can require an employee to get a vaccination, but most employers shouldn’t need to do this to ensure a safe workplace. Between people getting vaccination, and staying on top of making sure employees have access to masks and other PPE, regular handwashing, keeping distance, making telework available as needed and appropriate, and decent workplace ventilation, employers can maintain a safe workplace for their employees and those interacting with their workplace. The decision by Pfizer and Moderna to pursue full FDA approval for their vaccines should make it even clearer that employers and universities have the authority to take such steps.

Employers that do require vaccination would have to make sure that they stay in line with federal disability and civil rights laws, which allow people to request reasonable accommodations based on their disability status and sincerely held religious beliefs, respectively.

In some very limited circumstances, such as when health care providers are treating vulnerable populations as a core responsibility of their jobs, an employer may be able to show that it isn’t possible to give an employee a reasonable accommodation. In those situations, they would be able to exclude employees from the workplace.

The best approach employers can take is to make it as simple as possible for their employees to get vaccinated. There are a few easy steps they can take to help with this process, and doing so can positively influence vaccine uptake:

  • Hearing from their employer that they support vaccination is a powerful message to send employees. Tell your employees that getting vaccinated is a safe and effective way to protect themselves, their coworkers, their clients, and their loved ones from the virus, and that having people choose to get vaccinated is the easiest way for us to end the pandemic and get things back to normal.
  • Many employees are worried about having to take the time off to get the shot or if they happen to get side effects from getting vaccinated. The IRS now has a web page for a new program (part of the recently passed American Rescue Plan Act of 2021) that allows small and medium sized businesses to claim tax credits for providing their employees paid leave to take time off for covid-19 vaccinations. Employers can make that benefit available to their employees and tell them the benefit covers the time to go get the shots and if they need some time off to recover from any shot side effects.
  • Share information about where employees can get shots, or set up a clinic at work. Websites like Vaccines.gov or ourshot.in.gov let employees look up their zip code or their work zip code to see where vaccinations are available. Or employers can work with the local health department or pharmacies to see about arranging vaccine clinics at the office.

Can an employer ask for proof of Covid-19 vaccination?

Yes, under Indiana and federal law, an employer can ask employees for proof of Covid-19 vaccination. Asking for vaccination proof wouldn’t violate HIPAA or any federal, employment, disability or genetic privacy laws. But employers have to be careful about how they ask for this information. For example, if they want their employees to share their vaccination records from a pharmacy or a health care provider, they should warn the employee not to provide any other medical information as part of the proof, so the employees don’t share information with the employer that might be related to a disability or their genetics. If employees haven’t received the vaccine, employers should not start asking why, unless the employer is ready to explain why their questions are “job-related and consistent with business necessity” under federal disability laws.

Can an employee refuse to answer employer questions about their vaccination status? Can an employer exclude employees from the workplace if they refuse to get vaccinated?

The Equal Employment Opportunity Commission hasn’t discussed the first subject directly, but under their guidance, they do discuss that it would be permissible for an employer to exclude an employee from the work site if they, for example, refuse to undergo onsite screening testing.

An employer may establish workplace standards that individuals “shall not pose a direct threat to the health or safety of individuals at the workplace.” An employee who does not have an ADA-based or religiously-based rationale for not being vaccinated would not be covered by federal employee protections. Those with either a disability- or religiously-based exemption basis for refusing vaccination can be excluded from the workplace (not necessarily fired) in circumstances where the employer can demonstrate that the employee (a) poses a direct threat to the workplace, due to a (b) “significant risk of substantial harm” to the health and safety of themselves or others (c) that cannot be eliminated or reduced by a reasonable accommodation.  According to the EEOC:

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the FMLA or under the employer’s policies.

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|2021-05-10T08:13:51-04:00May 10th, 2021|COVID-19 Literature|0 Comments

About the Author: Ross Silverman

Ross Silverman
Ross D. Silverman, JD, MPH, is Professor of Health Policy and Management at Indiana University Fairbanks School of Public Health and Professor of Public Health and Law at Indiana University McKinney School of Law in Indianapolis. He is a member of the IU Centers on Health Policy and Bioethics. His research focuses on public health and medical law, policy, and ethics, and law's impact on health outcomes and vulnerable populations. He also serves as Associate Editor on Legal Epidemiology for Public Health Reports, the official journal of the Office of the U.S. Surgeon General and the U.S. Public Health Service. His most recent Covid-19 publications include: "Ensuring Uptake of Vaccines Against SARS-CoV-2" in the New England Journal of Medicine (with MM Mello & SB Omer), and "Covid-19: control measures must be equitable and inclusive" in BMJ (with ZD Berger, NG Evans & AL Phelan)

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