June 16, 2021 | Compliance, Podcast

Employer Considerations on Workplace Vaccination

Now that the COVID-19 vaccine is more widely accessible in the U.S., many employers are wondering how the vaccine can be used to facilitate a safe return to the workplace.

HR, health, wellness and safety professionals want to know: Can or should we mandate employees to get vaccinated? What about workers who do not want to get vaccinated?

In the first episode of our Health Is On The Way podcast, Brad Lawson and Susan Morgan Bailey interview Barbara Zabawa to help answer these questions and provide guidance for employers on mandating, encouraging and administering the COVID-19 vaccine in the workplace. 

In this episode...

  • Current government guidance on monitoring employee health and employee vaccination status 
  • Can or should employers legally mandate the COVID-19 vaccine for employees? 
  • What exemptions employees can use to refuse vaccination and how employers need to accommodate unvaccinated employees
  • Is employee vaccination status protected information?
  • How to balance workplace safety while protecting individual rights 
  • The use of incentives, third parties and integrating vaccination into employee well-being programs

About Our Guest

Barbara Zabawa is the founder and President of the Center for Health and Wellness Law, LLC and is a graduate of the University of Wisconsin Law School.

Below you'll find the podcast recording, relevant links and resources on this topic and the transcript. 

 


Additional, Relevant Resources on Vaccines in the Workplace 

The current federal guidance from the U.S. Equal Employment Opportunity Commission (EEOC) states that employers could require workers to be vaccinated against COVID-19 as long as they do not violate the Americans With Disabilities and the Civil Rights Act.

However, the agency also stated, “Whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Check out the resources below that track current and pending legislation pertaining to employer-mandated vaccinations to stay informed:

Transcript

Brad Lawson:

Hi, I'm Brad Lawson.

Susan Morgan Bailey:

And I'm Susan Morgan Bailey.

Brad Lawson:

And this is "Health Is On The Way," a podcast sponsored by Bravo Wellness. You may know what employee wellness is, but if you want to talk about what it should be, head to bravowell.com.

Each episode features informed guests tackling emerging issues in health and healthcare.

Susan Morgan Bailey:

Or sometimes, we take a fresh look at bold ideas. And each time, we aim to give you information you can act on to bring more health and well-being your way.

Brad Lawson:

As always, this isn't healthcare advice. Please consult your own qualified professional to talk about your needs and situation.

Brad Lawson:

So today we have an awesome guest. It's Barbara Zabawa, who is the founder for The Center for Health and Wellness Law. And she is an expert in everything related to employer wellness, HR benefits policies and regulatory compliance.

We've talked to her before. We love her. She, she makes us feel inadequate about how many things she accomplishes in a day. And we're going to talk to her about something you may have heard a little bit about.

Susan Morgan Bailey:

Yeah! Hot topic: COVID vaccinations in the workplace.

Brad Lawson:

Yeah, so if you're, if you're an employer and you've been wondering about the stance you can, or maybe should take, regarding vaccination of your workforce, we're going to bring you the latest news from an expert.

But as always, you should probably talk to your own legal, get your own legal advice, right?

Susan Morgan Bailey:

Yes. But don't skip this podcast because it's full of good information.

Brad Lawson:

Don't skip this podcast because it is awesome, and she breaks down the latest, the latest news related to this hot topic. Let's get at it. Barbara, thank you for joining us.

Barbara Zabawa:

Thank you for having me.

Brad Lawson:

I don't think it would be a stretch to say that all of us, not just here in the U.S. But globally over the last year our lives have radically changed and we are obviously dealing with a global pandemic that has impacted almost every aspect of life.

Brad Lawson:

And I think one of the things that we wanted to dive in with you, as a workplace wellness policy and legal expert, is really what employers should be thinking about as they start to open up the workplace, bring workers back to offices and other types of working environments. And specifically, I think from a regulatory and policy perspective, you know, what, what employers can do and maybe also what they should do. Because those aren't always the same thing.

Brad Lawson:

So I think the big first question is what guidance has the government or the EEOC put out around things like monitoring employee's health, which is something that I think is we're always been very concerned about privacy and what are their rights there?

Barbara Zabawa:

Yeah, the EEOC has actually put out a pretty good guidance document in the form of an FAQ (frequently asked question) document, and they've been updating it ever since the pandemic started.

Barbara Zabawa:

So the last updates really, I think, were in December of last year, December, 2020 and where they were talking about vaccinations, because that's when the vaccine was just starting to roll out. And they realized that there were going to be questions from the employer community about what do we do about the vaccination in the workplace.

Barbara Zabawa:

So there is some guidance from the EEOC about the restrictions that employers should be aware of when it comes to asking questions about the vaccine or wanting to get their employees vaccinated, and how what's the best way to do that. And how does that implicate the ADA and GINA, the Genetic Information Nondiscrimination Act as examples, and then Title VII, which are the primary laws that the EEOC enforces with regard to the workplace.

Brad Lawson:

So what was that guidance?

Barbara Zabawa:

So the basic guidance is employers can ask the employees if they've been vaccinated. That giving the vaccine in itself is not a medical exam. You know, if, if something is a medical exam, or if you're asking disability-related questions, then you're in the ADA (Americans with Disabilities Act) framework. But they concluded that asking if you've had the vaccine or asking you to get the vaccine and actually delivering the vaccine on the worksite, for example, that itself does not implicate the ADA.

Barbara Zabawa:

What would implicate the ADA is if you are asking questions - follow-up questions. So let's say you have an employee who has doesn't have the vaccine and you start asking them why. Or you offer the vaccine at work, and you have some employees who don't want to get the vaccine. Or you're asking employees before administering the vaccine questions to see if they might have an adverse reaction - would probably be a good idea.

Barbara Zabawa:

So you're asking them health-related questions. Those questions would be subject to the ADA and possibly GINA. And so you would have to be aware of compliance with those laws. And how to comply with those laws is you would have to make the vaccine then voluntary. And the questions, the answers to the questions voluntary, because then you are asking disability-related questions and you can't ask those questions unless it's voluntary.

Barbara Zabawa:

So the way that the EEOC said you can get around that if you didn't wanna make it, you didn't wanna make it voluntary, for example is that you could have the employees go to their healthcare provider and get the vaccine from someone else, from a third party. You know, it doesn't matter. It doesn't have to be healthcare provider. I'm sure that, you know, just like in my community, other communities have vaccination centers that people can go to that aren't necessarily affiliated with their healthcare provider. But you can have them go get their vaccine elsewhere and then bring back proof that they have received the vaccine.

Barbara Zabawa:

Because I know that some employers are considering whether they should mandate the vaccine. And that will depend of course, on, you know, their employee base, their employee population and the attitudes of their employees, as well as the you know, the risks that are associated with having an employee population that is not fully vaccinated or vaccinated enough to be deemed having that herd immunity threshold. You know, are they faced, faced with customers? Are they, you know, in close proximity to each other? And what are the circumstances of the, of the work environment that might make wanting, can the employer wanting to have their employee population fully vaccinated a priority.

Brad Lawson:

Yeah, and I think that's the million-dollar question that I hear employers are struggling with. So I think, you know, historically some, some types of employers, like maybe a health system would, would mandate that for example, nurses get an annual flu vaccination. But what employers legally do you believe are, are allowed to mandate the COVID vaccination? Or are there, are there any?

Barbara Zabawa:

I don't think they've categorized it. I mean, I think if you want to mandate it as an employer, I think there are ways to do it legally. I think you can. You still have to adhere to other laws. So you, if you have employees who don't want to get the vaccination, because they do have an underlying disability, or they have a sincerely held religious belief those would be the two typical responses that employees would give if they were opposed to getting the vaccine. Those traits are protected under the civil rights laws, Title VII protecting the religious, sincerely held religious belief, and the ADA protecting the underlying disability. 

Barbara Zabawa:

And so in those cases, you know, where employee offers that reason for them to refuse the vaccination, you know, then the employer has to abide by the requirements of those civil rights laws, you know, providing a reasonable accommodations and that aren't offering undue hardship for the employer to comply, to offer those reasonable accommodations.

Brad Lawson:

So deep, deep and, like long fear of needles that doesn't count. That's not, it's not a protected class?

Barbara Zabawa:

Ha, no! It's not a protected class. Yeah.

Susan Morgan Bailey:

I guess where I get stuck is, so, is scenarios. And, you know, we're just sort of talking theoretically in some ways here, but so a company is gonna, you know, mandate everybody is vaccinated in order to have the job. And then to be clear, or that case, if somebody says no, and they don't have a deeply held religious belief or underlying disability, then the organization can lawfully release them from employment.

Barbara Zabawa:

Well, that the EEOC is very careful in it's guidance about that. So they go through the steps that you would need to take. So if you have an employee that voices one of those reasons for refusing the vaccine - sincerely held religious belief or an underlying disability. And, you know, you're satisfied that those are indeed the case that you then have to offer some sort of reasonable accommodation. You have to go through this iterative process with the employee to find a way that you can accommodate them being unvaccinated and not, you know, risk the safety and health of other employees or your customers or whomever.

Barbara Zabawa:

And if you can't find a reasonable accommodation, which, you know, the EEOC in its guidance offers examples where remote work, you know, giving the employee kind of a place to themselves where they're not going to be in close contact with other people making them wear PPE and other protective equipment, maybe changing their schedules so that they're minimizing contact with others. They work different hours. You know, there's all kinds of different options that you could use to meet the reasonable accommodation requirement.

Barbara Zabawa:

But if none of those are going to work, there's nothing that you could do as an employer, without facing undue hardship yourself as the employer. Then the EEOC says, you can exclude that individual from the workplace. You can exclude them. And they quickly follow up and say, this does not mean you can terminate them. We're not saying you can't terminate them, but not, we're not saying that you should either.

Barbara Zabawa:

And then once you, if you reach that point, then you should, of course meet with your legal counsel, make sure there aren't any state or local laws that you need to consider as well before you would actually terminate that individual.

Susan Morgan Bailey:

Awesome overview. And as I think about that, I'm imagining some of the employers, where we're going to have a floor of vaccinated people, and then we're going to have the non-vaccinated floor. I'm being facetious, but I'm also thinking about some of the workforces where they're saying, "No, you have to come back. So we have to keep you separate, but we don't want to let you go because we can't really let you go. Cause that's kind of more work than it's worth. So we're going to create a vaccinated floor, and a non-vaccinated floor."

Susan Morgan Bailey:

And the thing that comes up to me is if I know, if I'm the employer and I know who's vaccinated, aren't I not allowed to tell anybody? You know, like if I'm putting you on the vaccinated floor, on the non-vaccinated floor, haven't I just told everybody who's vaccinated and not vaccinated? Is that information protected?

Barbara Zabawa:

I mean, you, you need to have enough information to be able to protect the safety of others, to report things to the public health departments. But, you know, yes, that information should be kept separate and confidential from a regular employee's medical record or employee's employment record. But if you're going to have a policy, that's separating employees by vaccination status, um you know, I mean, people are going to, to figure that out, but is that necessary? I guess, you know, you'd have to ask yourself as the employer, is that, is that necessary to keep people safe? You know, you have to weigh the risks of inadvertently disclosing who's been vaccinated and who's not.

Barbara Zabawa:

And possibly what another thing, you know, if, if you are, if you are excusing people, which you have to under the law, from getting vaccinated based on religious belief or disability, and you are then sequestering them from everyone else, to me as a lawyer, I would say that it's also discriminating against those individuals based on protected class. And I would be very fearful that that would be raised in with the EEOC and a complaint with the issue because, you know, I mean, you're, you're treating people differently based on underlined protected class class. Vaccinations status may not be protected, but the reason for why they're not getting the vaccine would be.

Brad Lawson:

So I think one of the other things that I've seen that employers are doing is they're leveraging, for example, daily symptom checking where employees are, are using some type of tool. I'm familiar with a company called Vital Circle, for example, that, you know, every day there, you're paying to answer some questions about how you're feeling and your temperature. Um they're using contract tracing in the workplace just to be able to reverse engineer if somebody does later come down with COVID, who are they close to? What are some of the things have, have there been any challenges yet in the courts of, of those types of technologies or we're just not far enough?

Barbara Zabawa:

I haven't heard of any, not saying that there aren't, haven't been, you know, I don't have ... There could be, and I just haven't seen anything come across my desk, if you will. But yeah, no, I, I'm not aware of any complaints about the technology, per se. I'm sure that there are employees who don't like their employers knowing their business. That's a, that's a theme that we've been in the workplace wellness field encounter all the time.

Brad Lawson:

The employers here have a duty. You know, every company has a duty to not only protect their employees, right, you've referenced that, but you've also referenced third parties. So customers are one. Other, other people that are visiting an office, maybe a potential partner or a vendor, or you think about repair people that are coming in and they have a duty. And so I guess the question is how far does that duty extend, where it butts up against personal privacy and liberty?

Barbara Zabawa

It extends for their purposes of OSHA compliance, meaning having a workplace that's safe. So they do have a legal duty under OSHA and local or state equivalent laws to, you know, create or have a workplace that is a safer place to work in. And that would include, you know, exposure to disease and things like that.

Barbara Zabawa:

Where I've seen legal action has actually been on the flip side of what you're talking about, where employees have sued their employer for not doing enough. Oh, okay. Employees who feel like their employer is being too lax with, you know, protecting employee safety from the virus. And so they've filed complaints in court for not following CDC guidelines, not doing what they, they employees feel like they should be doing to protect them from, you know, exposure.

Brad Lawson:

So a lot of employers have incorporated these types of, of questionnaires or symptom tracking into their wellness program. Is that another option that they should be considering?

Barbara Zabawa:

Yeah. yeah. Well, the infrastructure's there. Then if you have it as part of your wellness program, you know, like an HRA kind of thing, you should be kind of familiar. There's a framework you can operate in. You know, you have to things have to be voluntary if it's part of the wellness program. And there's a lot of guidance on what you can and can't do with regard to asking employees disability-related questions when it comes to workplace wellness. So I think it makes sense to incorporate it as part of a wellness effort.

Brad Lawson:

Cause I think we've heard a lot of, a lot of news and, and, and research about, you know, the potential comorbidities that can make a COVID infection more severe. So we've heard if you have a blood pressure is one that's come out. Another one is obesity. They can, can make infections more severe, more likely to be hospitalized or mortality. So it makes sense, right. Of, of trying to, I don't want to say leverage a crisis, but to communicate to employees the importance of overall health in the context of the pandemic.

Susan Morgan Bailey:

It's an interesting way of looking at it. I did have one question related to policies. Do we think that the way that employers manage this fits underneath all existing policies? Or are you seeing organizations put specific policies in place related to COVID?

Barbara Zabawa:

Yes, because it is so unique. It is so contagious and there's so much fear around it that the existing policies typically just aren't specific enough. You know, the EEOC itself has carved out COVID as you know, a direct threat. It can be a direct threat in the workplace, unlike most anything else that they've dealt with before. And because of its direct threat status, you know, the laws of the ADA or the GINA laws are little less restrictive with regard to trying to protect employees in the workplace. And so the policies can accommodate those additional allowances, I guess, under the law.

Brad Lawson:

So Barbara, if we had to break this down to kind of like a set of really simple pieces of advice that you would have for HR and benefit leaderships inside a company, and I know there's lots of types of companies that maybe have unique needs, you know, what would those be around this topic? Obviously, I know you have lots of advice for people on other topics.

Barbara Zabawa:

Yeah, I don't think it would be too far off from what I advise on wellness programs generally, which is know your employee population. Do you know if your employees want to get the vaccine? Or, you know, how, what percentage of them want to get the vaccine versus don't and how does that fit within your employer model? Your, you know, do you have interfaces with customers from the outside? Do you have an environment there where people are in close proximity?

Barbara Zabawa:

Those are all things you need to consider before you would even think about, well, what steps can we take to protect our employees? First, you need to understand, you know, in relation to COVID, what are the attitudes? What is the work environment like? And then how can you address your unique situation with the different policies? And once you figure that out and once you know what you need to do, then you can work back and say, okay, here's how we're going to do it.

Brad Lawson:

One shout out to a company in Chicago called Civis Analytics. My friend, Crystal's son there, they, they built a tool based on their consumer surveys that they do that shows by county, in every state, what they estimate to be the vaccination hesitation rate. Which is really interesting as you go across the country. There's obviously in some states, very high vaccination hesitation rates over 50%. And you know, this gets down to that comment I made earlier, which is what you can do and what you should do, you could see, you know, a large number of your employees, not willing to go along and you could create some challenges for employers. So I think what you're saying is culturally understanding. Um and then marrying that with, you know, the real risk associated with all the stakeholders, which includes customers and, and others in the community. So that's great.

Susan Morgan Bailey:

I have learned a lot today. And I think for me, you've affirmed a lot for me, really with that last statement of given the state of the workplace the economy the, you know, the reality of what everybody went through in the last year and how they feel about work and the, the unrest we're going to have as people look for new jobs and decide what they want to do with their life. With new, fresh eyes, employers need to think about, you know, lots of things, besides just, are we going to mandate or not? I mean, there's, there's a lot to consider as they think through that. So I appreciate you sharing your wisdom today. I have no more questions.

Brad Lawson:

Well, I have one final question and just based on our offline conversation before we started recording. So what I usually like to ask our guests is what's the best thing that you've done for your health over the last year during COVID lockdown. But I think I know the answer. You wrote a book, you started a company, maybe two companies, I forget. You did so much, and this is in the pre-recording for our listeners, and Susan and I are going to walk away from this conversation feeling totally inadequate about how we spent the last year, um, what is the best thing that you've done for your health over the last year during the, during the global pandemic?

Barbara Zabawa:

Well, I haven't sacrificed sleep despite having a lot of balls up in the air. So I made sure sleep set a priority and exercise is still a priority. That, that's what I've done. That's pretty good. Given everything else you've been doing. Yeah, it is good.

Brad Lawson:

Susan, what about you? What's the best thing you've done for your health?

Susan Morgan Bailey:

We adopted a dog. It'll be the one year anniversary here is in is in a few weeks, but that dog requires lots of walks. And so getting out in nature, regardless of what the weather is doing over the last year has been honestly, one of many good things that I did for myself in the last year. Lots of walking with the dog.

Brad Lawson:

Okay. That's awesome. For me, it was because my travel dramatically slowed down. So I'm used to being on an airplane 150 to 200 times a year. And so my travel dramatically slowed down, which really gave me an opportunity to focus on eating better. Less airports with few, with, with very few good food choices,

Susan Morgan Bailey:

Less temptation. It makes it much easier.

Brad Lawson:

Much easier. Well, we really appreciate your insights and advice, Barbara. And again, good luck with the book. Why don't you share really quickly the book that just came out?

Barbara Zabawa:

Sure, it's called "The Tug: Finding Purpose and Joy Through Entrepreneurship" and it's available on Amazon.

Susan Morgan Bailey:

Awesome.

Brad Lawson:

Well, we appreciate it. Thank you very much. And we'd love to have you again sometime. Thank you.

Barbara Zabawa:

Thank you for the opportunity.

Brad Lawson:

 

Once again, this podcast is sponsored by Bravo Wellness. To learn more about how Bravo Wellness helps employers reduce costs and improve care, and how Bravo helps people live their best life, visit bravowell.com

Barbara Zabawa:

And if you love this episode, click subscribe, and tell your friends that health is on the way!

 

Topics: Compliance, Podcast

 

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