May 13, 2021

By Attorneys Lindsay Vaught and Alec LeSher

Now that all adults are eligible to receive a COVID-19 vaccine, employers have questions surrounding their legal responsibilities when it comes to employees and vaccination. This Client Alert addresses some frequently asked questions and the current state of administrative guidance in this evolving area. Please note that administrative guidance is persuasive but not binding on courts applying the applicable laws.

Do employers have to make vaccination available for employees?  

OSHA has published guidance recommending elements of effective COVID-19 prevention programs, including to make a COVID-19 vaccine available to all eligible employees at no cost. It is, therefore, advisable for employers to make the COVID-19 vaccination available to its employees. Under the Occupational Safety and Health Act, employers are required to provide a workplace that is safe and healthy, and free from recognized hazards likely to cause death or serious physical harm.

If an employer administers a COVID-19 vaccine to an employee, or contracts with a third party to administer a COVID-19 vaccine, is administration of the vaccine a “medical examination” for purposes of the ADA? 

EEOC guidance published in December 2020 advises that the vaccination itself is not a medical examination, but the pre-screening vaccination questions are likely to elicit disability-related information. If the employer offers the vaccine to employees on a voluntary basis, then the ADA requires that the answering of pre-screening questions must also be voluntary. If an employee opts not to answer the pre-screening questions and does not receive the vaccine, the employer cannot retaliate, intimidate, or threaten the employee for such refusal.

If the employer makes vaccination mandatory and the employer administers the vaccine (or contracts with a third party to administer the vaccine), then the employer must show that the pre-screening questions are “job related and consistent with business necessity.” Meeting this standard requires the employer showing reasonable belief based on objective evidence that an employee who does not answer the questions (and therefore is not vaccinated) will pose a direct threat to the health or safety of the employee or others. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)

If an employer administers COVID-19 vaccination to its employees, does the employer have to get the employees’ written consent?

Generally, in Iowa, a patient needs to give informed consent to a medical procedure. Iowa Code § 147.137. Thus, it would be wise to have employees sign a consent form before they are vaccinated. The consent form should have the employee acknowledge that: (1) they understand the nature and purpose of the vaccine; (2) they understand the risks; (3) they have received a disclosure of that information and have had all of their questions answered satisfactorily; and lastly, (4) sign the form.

Did Iowa pass a law prohibiting vaccine mandates? 

No. However, on May 5, 2021, the Iowa Senate passed HF 889 Banning COVID Passports, and sent the bill to Governor Reynolds. Governor Reynolds has said she will sign the bill. The bill will prohibit “the state or any political subdivision” from including information regarding vaccination status on an identification card. The bill will also prohibit businesses and governmental entities from requiring a “customer, patron, client, patient, or other person who is invited onto the premises” from showing “proof of having received a vaccination for COVID-19” prior to entering the premises. The bill “does not prohibit a business or governmental entity from implementing a COVID-19 screening protocol that does not require proof of vaccination for COVID-19.” The language of the bill does not expressly apply to employees or employer vaccine mandates. As of the date of this Alert, Governor Reynolds has not signed this bill, i.e., HF 889 Banning COVID Passports has not been signed into law.

A separate bill has been introduced before the General Assembly that would prohibit employer vaccine mandates. SF 555 Prohibition of COVID-19 Vaccine Mandates By Employers. The bill would prohibit employers in Iowa from discriminating against employees or applicants on the basis of COVID-19 vaccination status, and would provide civil remedies for violation. Senate File 555 was referred to the Human Resources Committee on April 1, 2021. This bill has not been passed by the Senate, and its ultimate passage looks less clear.

After employees receive a COVID-19 vaccine, can they stop taking other mitigation measures required by the employer?  

OSHA guidance advises that employers should not distinguish between workers based on vaccination status. Vaccinated workers should continue to follow other required mitigation measures because at this time “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.” See OSHA guidance, available here: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration (osha.gov).

Can employers require employees to receive a COVID-19 vaccine?  

This is unchartered legal territory, and there is not a clear answer. There is no law explicitly prohibiting employer vaccine mandates to employees. However, the COVID-19 vaccines are currently available only under Emergency Use Authorization (“EUA”) and have not received FDA approval. The FDA explains that it is required to inform recipients of an EUA product of certain information, including “that they have the option to accept or refuse the vaccine.” The COVID-19 vaccine fact sheets inform the recipients about Emergency Use Authorization, including that: “It is your choice to receive or not receive the [brand name] COVID-19 Vaccine.” An employee could contend an employer mandate effectively removes the employee’s option to not receive the vaccine, and an employee terminated for refusing a vaccine authorized under EUA could conceivably bring a wrongful discharge claim against the employer. However, the viability of such a claim is unclear.

The fact sheets for the COVID-19 vaccines that have received Emergency Use Authorization are available on the FDA website here: COVID-19 Vaccines | FDA.

Can an employer ask employees for proof of receipt of a COVID-19 vaccination to track employee vaccination status? 

The EEOC has advised that requesting proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, but that follow-up questions like why an employee has not received a vaccination may be disability-related and subject to the ADA standard that the questions be “job-related and consistent with business necessity.” If an employer requests that employees provide proof of receipt of a COVID-19 vaccine (such as a copy of the employee’s COVID-19 vaccine card), the EEOC suggests asking employees to not provide any medical information as part of proof of vaccination.

If an employer does mandate its employees receive a COVID-19 vaccine, does the employer have to allow exemptions for an employee with a disability? 

Yes. An employer that requires vaccination may need to allow medical exemptions to vaccination as an accommodation under the ADA and/or the Iowa Civil Rights Act.

EEOC guidance advises that, under the ADA, an employer can have a qualification standard that an employee not pose a “direct threat to the health or safety of individuals in the workplace.” The employer would have to show that the unvaccinated employee would “pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” Whether a “direct threat” exists is an individualized assessment based on four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.

If an employer determines that an employee who is not vaccinated due to disability poses a direct threat at the workplace, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation that would mitigate the risk. If the employer determines that an employee who does not receive a COVID-19 vaccine due to disability poses a direct threat that cannot be mitigated with reasonable accommodation, that does not mean the employer can terminate the employee. The employer will still have to consider whether reasonable accommodation that does not involve entering the workplace, such as remote work, is possible. The employee may also be entitled to leave under the FMLA, ADA as an accommodation, or the employer’s policies for such time that a “direct threat” is posed.

If an employer mandates its employees receive a COVID-19 vaccine, does the employer have to allow exemptions for an employee with a sincerely held religious belief that prevents the employee from receiving a COVID-19 vaccination? 

Yes. An employer that requires vaccination may need to allow religious exemptions to vaccination as an accommodation under Title VII and/or the Iowa Civil Rights Act. Employers must provide reasonable accommodation for an employee’s sincerely held religious belief that prevents that employee from receiving a vaccination, unless it would pose an undue hardship. An “undue hardship” means more than a de minimis cost or burden on the employer.

EEOC guidance provides that an employer should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. The employer should only request additional supporting information if the employer has an objective basis for questioning the sincerity or religious nature of the accommodation request.

Does the employer have to record employee adverse reactions to a COVID-19 vaccine on its OSHA recordkeeping log?

Whether an adverse vaccine reaction is work-related, and therefore recordable, depends on whether the vaccine is required by the employer. OSHA recently published three vaccine related FAQs, explaining the following key points:

  • If an employer requires its employees to be vaccinated, then any adverse reaction to the COVID-19 vaccine is deemed work-related.
  • An adverse reaction to a COVID-19 vaccine is recordable on the employer’s OSHA recordkeeping log if the reaction is (1) work related (e.g. required for employment), (2) a new case, and (3) meets at least one of the general recording criteria, such as days away from work, restricted work or transfer to another job, or medical treatment beyond first aid. 
  • If an employer recommends, but does not require, the vaccine and makes the vaccine available for employees to receive, the employer does not have to record adverse reactions, as long as the vaccine is “truly voluntary.” The OSHA FAQ explains: “An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice. If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely ‘recommended.’”

The OSHA FAQs are available here: COVID-19 - Frequently Asked Questions | Occupational Safety and Health Administration (osha.gov)

If an employee is injured by a COVID-19 vaccine that an employer required the employee to get, will the employer be responsible for medical treatment and/or disability benefits under workers’ compensation? 

Yes. In general, an employer is liable for worker’s compensation for “any and all personal injuries sustained by an employee arising out of and in the course of the employment[.]” Iowa Code § 85.3(1). Injuries resulting from an employer mandated vaccine would likely constitute an injury arising out of and in the course of employment.

If an employee is injured by a COVID-19 vaccine that an employer strongly encouraged the employee to get and/or offered with an on-site COVID-19 vaccine clinic, will the employer be responsible for medical treatment and/or disability benefits under workers’ compensation? 

Such injuries may or may not be compensable, depending on a variety of factors such as:

  • whether the vaccination was administered on the employer’s premises,
  • whether the vaccine was administered during the workday,
  • the degree to which the employer sponsored the activity,
  • the amount of control exercised by the employer,
  • whether attendance was required or expected,
  • whether the employee was compensated for time spent, and 
  • whether there was a substantial and direct benefit to the employer.  

If the employer expressly or impliedly required receipt of vaccination, then a resulting injury would likely be compensable.

Can an employer require its employees to sign a waiver of liability for adverse reactions to the vaccine?

The informed consent form may also incorporate a waiver and release of liability for any side effects or complications. However, this is a gray area of law given the way that the vaccines have been developed quickly in an emergency situation. An informed consent form that includes a liability waiver does not guarantee that an employer will be immune from a claim of liability, but complying with Iowa informed consent law and getting a corresponding waiver may help insulate an employer from future liability.

The level of protection a consent and waiver form provides may also depend on whether the employer requires its employees to get vaccinated. Generally, if an employer requires its employees to get a vaccine and the employee later suffers from complications, the employer will be responsible under Iowa workers’ compensation law. Even if the vaccine program is voluntary, an employer may be liable for adverse reactions in certain situations. For example, if the employer strongly encourages or incentivizes its employees for getting vaccinated, they may face an increased risk of liability for an adverse reaction, even if they did not strictly require it.

Employers should seek legal counsel on developing a waiver and whether it will provide the desired level of protection, but all employers should ensure that their employees are giving informed consent to the procedure, whether through a third-party provider or directly.

If you have questions about this client alert on vaccinations, please contact an attorney in the Ahlers & Cooney Employment Law Practice Group.

 

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LeSher, Alexander

Associate
Phone:
515-246-0312

Vaught, Lindsay

Shareholder
Phone:
515-246-0333

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