Everything Employers Always Wanted to Know About Vaccines — and So Much More

All adults in the United States are now eligible to receive the COVID-19 vaccine, and many of them have done so — at the time we are publishing this alert, 34% of the U.S. population is fully vaccinated, and 46% has received one dose of the Pfizer or Moderna vaccine. And with the arrival of spring, employers and employees alike are seriously considering a return to the office and wondering exactly what that will look like.

Employer Vaccine Mandates

The good news is that many Americans are fully vaccinated or on the way to achieving that status. But a significant part of the population — 20% to 30%, according to recent surveys — is unlikely to get vaccinated. That creates substantial challenges for employers seeking a return to normalcy in the workplace (or at least a new normal) but also wanting to ensure the safety of their employees. We address below questions many employers are contemplating.

Can an Employer Mandate Vaccinations?

The simple legal answer is “mostly yes,” at least today in most jurisdictions. An employer may require its employees to become vaccinated as a condition of employment, provided that it makes reasonable accommodations for individuals who cannot be vaccinated due to a medical condition or a religious objection. However, some states are considering laws that would prohibit employers from taking action against individuals who decline to become vaccinated. Thus, employers who are considering a mandatory vaccine policy must be attentive to developing law in the jurisdictions in which they operate.

Should an Employer Mandate Vaccinations?

At this point, very few employers have announced mandatory vaccination policies. Indeed, most major hospital systems — the front lines of the COVID-19 battle — have announced that they will not mandate vaccines, at least while the vaccines are operating under Emergency Use Authorizations from the FDA, rather than full regulatory approval. Thus, any employer that chooses to implement a mandatory vaccine policy at this time runs the risk of being ahead of the curve on this issue.

That said, in recent weeks more employers are exploring the possibility of vaccine mandates. This may be the result of a variety of factors. Numerous colleges and universities have announced that only vaccinated students will be permitted to return to campus, including much of the Ivy League, Stanford University, Duke University and the University of California system. Pfizer is expected to seek full approval of its vaccine in the coming weeks (it currently is being used under an Emergency Use Authorization), with Moderna to file shortly thereafter, and hospital systems and other medical organizations may be more inclined to mandate vaccinations once full approval is obtained. As other organizations start to explore and implement mandates, employers may find that opposition to such policies is reduced.

Nonetheless, at this time employers considering mandatory vaccination policies face several challenges. First, general public opinion still trends against such policies, and employers will need to consider whether employee retention and recruiting may be impacted by instituting one. Second, as noted above, every employer can expect that some percentage of individuals will refuse to be vaccinated, even in the face of a vaccine mandate. Employers need to consider whether they are prepared to terminate, or exclude from the workplace, individuals who choose not to be vaccinated.

What Can Employers Do Short of a Mandate?

Employers certainly can encourage employees to become vaccinated. They also can educate employees about vaccination by distributing materials or hosting webinars with medical experts who can discuss the benefits and risks of vaccination and try to dispel myths concerning COVID-19 vaccines.

Employers also may provide certain incentives to employees who become vaccinated. In New York, employers are now required to provide employees up to four hours of paid leave to use for vaccine appointments — with two four-hour blocks for the Pfizer and Moderna vaccines and one block for the Johnson & Johnson vaccine. The extent of permitted incentives that employers may provide is murky at this time, but the Equal Employment Opportunity Commission is expected to issue guidance on this topic in the near future.

Finally, employers may consider implementing a “vaccinate or test” protocol, under which individuals who do not show proof of vaccination are required to undergo regular COVID-19 testing on a weekly or other basis.

Can Employers Require Employees to Report Whether They Have Been Vaccinated?

Yes. However, employers should be careful that in collecting such information they do not receive other medical information about employees. The employer should seek to learn only whether the individual has been vaccinated and should avoid receiving any medical information about why a person has not been vaccinated.

Before asking for confirmation of vaccination status, employers should consider what they will do with such information. Perhaps you just want to have confirmation that a large percentage of your workforce is vaccinated. You might even want to share that fact with employees, although you would need to do so on an aggregated and fully anonymized basis. But having such information may lead to more challenges, as some employees may have a strongly negative reaction to learning that some percentage of the workforce has not been vaccinated.

Collecting information regarding vaccination status may make sense because it will inform what rules must be followed when employees are exposed to COVID-19. Vaccinated individuals are not required to quarantine following an exposure, but employees who are not vaccinated will be subject to a mandatory quarantine. Employers that know the vaccination status of employees will be able to expeditiously consider such issues.

Other Return-to-Office Issues in the Age of COVID-19 Vaccines

Should Employers Require Returning Employees to Sign Waivers?

Employers sometimes consider requiring employees to sign a waiver of liability before returning to the office. Such waivers generally have little legal effect or benefit, and may cause employee backlash and otherwise interfere with employer messaging.

Waivers are of limited, if any, legal benefit because most jurisdictions prohibit an advance waiver of potential future claims. Moreover, requiring a waiver as a condition of continued employment may, in certain jurisdictions, be subject to challenge as against public policy. At best, waivers may arguably be viewed (by employees, if not by courts) as an employee’s assumption of risks associated with a return to the office.

Employers also should consider the mixed messages that requiring a waiver may send to employees. As employees return to the office, employers want them to feel safe in the workplace and confident that the employer has taken all reasonable steps to ensure that the workplace is safe. Requiring them to sign a waiver of liability may be interpreted by employees as inconsistent with employers’ other messaging and make them question the safety of a return to the office.

Can Vaccinated Employees Stop Wearing Masks at Work?

At this point, no. While the CDC and various states have loosened restrictions on social gatherings for individuals who are vaccinated, the guidance for workplaces has not changed, and employers continue to be required to enforce masking and social distancing guidelines in offices. Of course, new guidance is handed down on a regular basis, so these requirements may be expected to change over time.

Prepare for Accommodation Requests

Some employees will resist return-to-office mandates. Employers will need to establish procedures for considering requests for accommodations based upon medical (including mental health) issues. Employers should consider establishing that all such requests be considered by the same group of individuals to ensure a consistent approach.

Employers also will see an increase in requests for exemptions that are not related to an employee’s medical condition, whether arising from an employee’s generalized fear of returning to the office (which does not arise to a diagnosable condition), preference for remote work or concern about at-risk family members. Employers should consider in advance how they intend to respond to requests where an accommodation is not legally required. In particular, employers should be cognizant of the risk of discrimination claims if similarly situated employees are treated differently.

What Will Work Look Like Going Forward? — Considering Flexible Work Arrangements

After more than a year of remote work for many employees, many employers are considering implementing a broad range of flexible work policies as employees begin to return to the office. Variations abound — from fully remote to a split of in-office and remote work days each week to a full in-office schedule. Employers may well have different arrangements for employees in different departments or roles, based upon the needs and requirements of particular positions.

Some of the issues employers are considering as they develop plans for a more flexible workplace include:

• Culture and Collaboration: How do we maintain our culture and ensure effective collaboration when employees come together less often?
  
  
• Productivity: Are people as productive when they work remotely as when they are in the office? Do we need to develop new performance measures for remote work?
  
  
• Equity and Potential Discrimination: Who is, and who is not, permitted to work remotely? Are particular identifiable groups more likely to be required to work in the office? Are we creating a class system where lower-paid workers are required to be in the office while higher-paid workers are not?
  
  
• Wage and Hour Issues: How do we ensure that nonexempt remote workers properly track their time, take required meal and rest breaks, and are paid for overtime work? What about short periods of work outside of the normal workday to check and respond to emails or perform other brief work-related activities?
  
  
• Protection of Confidential Information: What protocols need to be implemented to ensure protection of confidential information of our company and third parties?
  
  
• Expectations: Do flexible work arrangements contemplate that people can take off time during the regular workday to attend to personal matters and make up the work at a more convenient time? Or are employees expected to be online and available throughout the regular workday?
  
  
• Reimbursement of Home Office Expenses: What expenses must we reimburse, such as computer, internet, cell phone, etc.? Note that there is significant variation from state to state in legal requirements regarding expense reimbursement obligations.
  
  
• Workplace Safety: What obligations do we have to ensure that remote workers have a safe workplace, including an ergonomic setup?
  
  
• Tax and Related Implications: If an employee’s office location and remote work location are in different states, how does that impact tax withholding and similar obligations? Do we need to be registered to do business in a state in which we have employees working remotely?

Other Recent Developments Concerning COVID-19 and the Workplace

No Changes to Masking and Social Distance Requirements in the Workplace

As noted above, while the CDC and New York have issued guidance relaxing mask and social distancing requirements for vaccinated individuals in certain social situations, no changes have been made to the workplace requirements at this time. In the workplace, vaccinated and unvaccinated individuals continue to be subject to the same requirements.

New York Office Capacity Limits to Increase to 75%

Offices in New York may increase their capacity from 50% to 75% on May 15. For this purpose, the maximum capacity is that designated on the certificate of occupancy for the relevant space. As a result, many offices will be able to have 100% of their employees in the office.

Quarantine Is No Longer Required After Travel

Following a change in guidance issued by the CDC, New York has modified its travel restrictions such that individuals are not subject to a mandatory quarantine upon arrival in the tri-state area as long as they do not have any symptoms. Nonetheless, the guidance states that individuals who are not fully vaccinated and have not recovered from COVID-19 within the previous three months are recommended to get tested three to five days after arrival in New York and should consider self-quarantine. All travelers are required to monitor for COVID-19 symptoms for 14 days after travel is completed.

New York HERO Act to Impose New Safety Obligations on Employers

On May 6, 2021, Governor Cuomo signed the Health and Essential Rights Act (the HERO Act), which requires the New York State Departments of Labor and of Health to develop a model airborne infectious disease exposure prevention standard for all employers. Once published, employers that have 10 or more employees will be required to adopt the model standard applicable to their industry or design an alternative plan that meets or exceeds the standards set forth in the model. Retaliation against employees who exercise rights under the new law also is prohibited.

Perhaps the most striking element of the law is that it requires employers to permit employees to establish a “joint labor-management workplace safety committee.” At least two-thirds of the members of the committee must be nonsupervisory employees and must be selected only by their peers — the employer has no say in which nonsupervisory employees get named to the committee. The balance of the committee may be appointed by the employer. Such committees are broadly authorized to raise safety concerns, review employer policies related to workplace safety issues and participate in site visits by governmental authorities. Particularly for non-unionized workplaces, the establishment of an employee committee of this nature is an unprecedented development for New York employers.

New York’s COVID-19 Vaccination Paid Leave Law

As noted above, New York employees are now entitled to four hours of paid leave per injection to receive the COVID-19 vaccine following an amendment to the New York Labor Law (NYLL) adding a new Section 196-c.

Under Section 196-c, employers must pay employees their regular rate of pay during this leave period and employees are not required to use any other leave to which they are entitled to get vaccinated. This paid leave is separate from, and in addition to, New York’s COVID-19 Paid Leave Law, the requirements of which are discussed below. Employees who receive one of the two-dose vaccines (Pfizer and Moderna) are entitled to a maximum of eight hours of paid leave.

Additional Guidance Regarding New York’s COVID-19 Paid Leave Law

The New York State Department of Labor (NYSDOL) issued additional guidance (the Guidance) for employers regarding New York’s COVID-19 Paid Leave Law (the Law). As discussed in our previous alert regarding the Law, employers are required to provide up to 14 days of COVID-19 paid sick leave depending on the size of the employer and the employer’s net annual income. The additional Guidance addresses testing requirements, the number of times an employee is entitled to paid leave and the obligation to pay employees their regular rate of pay while under employer-mandated quarantine following potential exposure to COVID-19.

Testing: Employees are not required to take a COVID-19 diagnostic test before returning to work following a mandatory quarantine or isolation order (with an exception for nursing home staff), and such testing is not recommended. However, if an employee receives a positive result for COVID-19 after a period of quarantine, the employee is not permitted to report to work, is automatically deemed to be subject to another mandatory order of isolation from the Department of Health and is entitled to a second period of sick leave under the Law. Unless the employer administered the COVID-19 test that rendered the positive result, the employee must submit documentation from a licensed medical provider or testing facility certifying the employee’s positive test result in order to qualify for a second or third paid leave for quarantine.

Multiple Leaves: Employers must pay employees sick leave for up to three periods of quarantine or isolation; however, payment is required for a second or third order of quarantine only if the employee tested positive for COVID-19.

Length of Leave: Depending on the size of the employer’s workforce and the employer’s net income, employers must provide employees with a minimum of five to 14 days of paid sick leave and must supplement such paid leave through the employer’s existing Paid Family Leave and disability leave policies for the remainder of the employee’s quarantine period. In addition, all employers, regardless of the size of their workforce and net income, must provide guaranteed job protection for the duration of the order of isolation.

Employer-Ordered Quarantine: If an employer requires employees who are not otherwise subject to mandatory orders of isolation or quarantine to stay out of work due to exposure or potential exposure to COVID-19, it must continue to pay the employee (and such period does not count as COVID-19 paid leave under the Law) until the employer allows the employee to report to work or until the employee is subject to a mandatory order of quarantine, at which point the employer must provide paid sick leave in accordance with the Law, as detailed above.

Final Thoughts

Issues concerning vaccinations, return-to-office protocols and plans, and flexible work arrangements are constantly evolving, and employers are well advised to continue to track changes in applicable legal guidance and market practices as more employers announce plans to address these issues.

For questions or concerns regarding any of the issues addressed in this alert, please contact a member of Kramer Levin’s Employment Law Department.