As you have likely heard, Oklahoma has moved on to Phase 4 of its COVID-19 vaccination plan and all adults (age 16+) who live, work, or attend school in the state are now eligible to receive the vaccine. This seems a good time to revisit an employer’s role in requiring and/or administering vaccines for its employees, and what is or is not permitted.

We talked about the EEOC’s guidance in our January 2021 newsletter, which generally permits employers to require employees to get vaccinated for COVID-19 (absent an employee’s disability or sincerely held religious belief that would prevent him/her from receiving the vaccine). But remember, employers are not required to mandate employee vaccines at this time; it is simply an option for those who wish to do so.

Since then, the CDC has issued its own guidance to employers about establishing workplace vaccination programs as vaccines become more widely available. Though the guidance is aimed to help employers build confidence in the vaccines and increase vaccination uptake among essential workers, the suggestions also apply to other types of workers and workplaces. (And a reminder that the CDC’s publication is simply guidance, recommended for employers to follow, but not required.)

Of particular note, the CDC reiterates what the EEOC already said: that employers cannot require employees to provide any medical information as part of proof that they have been vaccinated, and that there is both a medical exemption and a religious exemption for employees whose employers otherwise mandate they receive the COVID-19 vaccine. Employers offering vaccination to their workers should keep a record of the offer to vaccinate and the employee’s decision.

Building Confidence in the COVID-19 Vaccine

As part of any workplace vaccination program, the CDC encourages employers to build confidence in the COVID-19 vaccine as early as possible—even if many of their employees aren’t yet eligible to receive it. They can do so by having workplace leaders be visible proponents of the vaccine, communicating transparently and frequently with employees about the benefits and side effects of vaccination (the CDC has resources about this, including this fact sheet), and celebrating the decision for employees to get vaccinated (make stickers!).

Best Practices

Employers should check local and state health departments for the most up-to-date information about who is eligible to be vaccinated and when, and distribute that information to employees. Regardless of whether employers offer vaccination clinics in the workplace or encourage employees to be vaccinated in the community, they should offer flexible, non-punitive (paid) sick leave options for employees to get vaccinated and for those who have symptoms or side effects after vaccination. Employers using community locations for workforce vaccinations can provide transportation support for employees to get to the vaccination site. Allow time for vaccine confidence to grow; there may be some workers who are hesitant at first but become more confident after seeing their coworkers get vaccinated without incident. Having a mobile clinic return to the workplace periodically and/or providing transportation support and paid leave options for an extended period of time will help encourage those who are initially reluctant.

On-Site or Off-Site?

Employers who want to vaccinate their employees have two options: on-site vaccinations at the workplace or off-site vaccinations somewhere in the community (pharmacies, vaccination clinics, hospitals, or healthcare providers). On-site programs work better when there are a large number of employees with predictable schedules in the same location and when the employer has enough space and resources to set up a vaccination clinic. Off-site vaccination works better for small- or medium-sized employers who don’t have the resources to host a vaccination clinic or whose employees have variable schedules and work in a variety of different job locations.

On-Site Vaccination at the Workplace

Employers who want to host their own COVID-19 vaccination program on-site should plan ahead and contact their state and local health departments to find out any requirements. The CDC’s guidance has resources for those employers who want to host a vaccination clinic on-site. Consider retaining an outside vendor to administer the on-site vaccination program (like those who deliver worksite flu vaccines in the fall); they have trained nursing staff and can bill insurance for administration fees. Be prepared to monitor for and manage potential side effects (like anaphylaxis) after vaccination, and provide the time and space to do that. Report possible side effects to the CDC and FDA. Workplace vaccination clinics must offer vaccination at no charge and during work hours, and should provide access to vaccines for everyone working there—regardless of whether they are a regular employee, temporary employee, or independent contractor; a plan to vaccinate your entire workforce doesn’t make sense if you exclude people based on an arbitrary classification that has nothing to do with risk or exposure to COVID-19. Develop a plan to prioritize who gets vaccinated first (based on risk/exposure, age, or underlying health condition) if there is not enough vaccine supply for all workers eligible within a given phase. Consider staggering employee vaccinations to avoid worker shortages due to absences and vaccine side effects.

Off-Site Vaccination in the Community

When it is not feasible to host a vaccination clinic at the workplace, employers have other options to encourage employees to get vaccinated elsewhere in the community. Allow employees to get vaccinated during work hours or take paid leave to do so. Support transportation to off-site vaccination clinics, such as paying for taxicabs or ridesharing services. Communicate with employees about who is eligible to receive the vaccine and when, and advise them of any identification or screening requirements needed for their vaccination appointment. Post articles in company communications about the importance of COVID-19 vaccination and how/where to get the vaccine in the community. Educate and help workers who are eligible for the vaccine make their appointments through available channels. Remind employees that the COVID-19 vaccine is provided free of charge, regardless of whether they have health insurance.

Reopening Your Workplace

Even after employees are fully vaccinated, the CDC recommendation is that they continue to social distance, wear masks, and wash their hands frequently. Other safety measures like plexiglass dividers should also remain in place. Employers should conduct a thorough assessment of the workplace to identify potential hazards related to COVID-19. Widespread vaccination of employees can be one consideration for returning to the workplace, but employers should also consider the necessity for employees to physically be in the office and whether telework options can be continued, the transmission rate of COVID-19 in the community (and whether it’s increasing or decreasing), the ability of employees to practice social distancing and other prevention measures in the workplace, and any state or local mandates for business closure restrictions (of which Oklahoma currently has none). Many of the recommendations on reopening or returning to the workplace may not apply to Oklahoma employers, but they are CDC recommendations nonetheless.

As we’ve said before—and has been the case with almost all things COVID-related over the past 13 months—the question of whether employers should require their employees to get vaccinated for COVID-19 and how to setup a workplace vaccination program for those who want to do so remains complicated. The CDC guidance helps, but employers should still proceed with caution and make sure they comply with all local and state mandates and don’t run afoul of any EEOC or other laws.

By Rebecca D. Bullard, rbullard@dsda.com