Offering COVID-19 Vaccines At Work? Read This First.

Thanks to my privacy law partner Marty Robins, this morning, I read in the Wall Street Journal (WSJ) this morning that some large employers have received permission from public health authorities to administer COVID-19 vaccines to their employees in-house.

Efficient, I thought.

Vaccination in the workplace helps remove transit and time-off challenges for hourly workers, and it does efficiently get doses to those in high-risk positions, such as those where social distancing isn’t possible.

the author writes. That’s right! It does. Totally makes sense and a worthy endeavor.

But. Yes, there is a “but.” What about the legal issues? These are important.

What I did not see addressed in this article was any nod toward general liability, disability, or privacy law issues.

Employers that offer COVID-19 vaccines to employees at their workplace—in the understandable goal to get bodies back in chairs or at a warehouse— must consider these legal implications.

Whether mandating, incentivizing (did you join Eric Meyer and I when we discussed providing incentives here? If not, it’s worth a listen), or just encouraging employees to get a COVID-19 vaccine at the workplace, employers should consider these disability, privacy, and other liability matters and discuss them with counsel.

What Disability Concerns Are You Talking About, Amy?

According to guidance from the Centers for Disease Control and Prevention (CDC), as related by the Equal Employment Opportunity Commission (EEOC) (K.2), health care providers should ask certain questions before administering a COVID-19 vaccine. This ensures that there is no medical reason that would prevent the person from receiving the vaccination.

The key words here: questions, medical reason.

These screening questions implicate the Americans with Disabilities Act (ADA). Why? Because the answers are likely to provide information about a disability.

Now, the employer-hired vaccine provider can still ask these questions—the employer just needs to show that these questions are “job-related and consistent with business necessity” if requiring that its employees receive the COVID-19 vaccine at work. The EEOC lays it all out for employers at K.5.

Image by DoroT Schenk from Pixabay

Remember, we told you here that employers likely can require that employees become vaccinated against COVID-19.  While the EEOC takes the position that employer should encourage—rather than require their employee to get a flu shot—the bottom line is that employers can establish vaccine mandates.

To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  

Alternatively, if the employer does not require employees get the COVID-19 vaccine, and just offers it on a voluntary basis, the employee must be able to decline to answer. In turn, the employer may decide not give that employee the vaccine. Subsequently, the employer must be careful not to retaliate against the employee for refusing to answer these questions.

Fair’s fair, it seems, with one clear result: a COVID-19 vaccine requires the provider to conduct a ADA-screening analysis, in accordance with EEOC guidance. Employers should consult EEOC guidance because, hey, the EEOC is the federal agency that enforces the ADA.

In addition, The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

So much to remember.

There Are Privacy Concerns With Providing Employees With A COVID-19 Vaccine?

Yes! Employers need to be aware of a myriad of privacy concerns if they create a COVID-19 vaccine program.

Back in June, Marty and I and our law partner Kim Dempsey Booher, advised employers here about several such concerns, including careful analysis of state data privacy laws; minimizing data retention, since the ADA requires employers to keep all medical information confidential; information sharing concerns; and OSHA and consent obligations, just to name a few.

Simply put, privacy law applies to all information derived, not just medical information.

(Thank goodness for my FisherBroyles privacy partners!)

It is also worth checking in with your insurance carrier, too, to identify any liability issues inherent in providing COVID-19 vaccines at work.

Oh, But It’s Fine. I’m Having A Third Party Vendor Administer the COVID-19 Vaccines At Our Office. That will take care of these legal concerns, right?

Not so much.

As the privacy gurus and I told you in A COVID-19 Shot In The Arm… Of Employees?, a third party’s actions will likely be attributed to the employer, if something goes wrong.

So, consider covering such factors with your vendor such as:

  • Obtaining express written consent and acknowledgement of risk;
  • Avoidance of opinions as to the efficacy or safety of the vaccine;
  • Use of qualified personnel and unadulterated supplies;
  • Indemnification for employee or other third party claims associated with vaccine administration;
  • Maintenance of appropriate liability insurance; and
  • Proper handling and security of individuals’ information in accordance with applicable privacy law and HIPAA.

Employer Takeaway

Look, I get it. Getting people back to work safely and efficiently is a laudable goal.

Providing the COVID-19 vaccine certainly facilitates that goal and removes impediments for employees trying to get the vaccine. Employers have had to scramble and pivot this year to an inordinate degree, which certainly detracts from the business at hand—their actual businesses! Might as well bring it in-house.

I’m just saying consider and discuss with trusted legal counsel these legal questions and implications, and, of course (shameless plug), let us know if we can help. We’re here for you, employers.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.