On March 16, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance on workplace vaccination programs to “help employers prepare for vaccination either at the workplace or when vaccine becomes available in the community.”

Vaccine Confidence. The CDC recommended that employers “[b]uild vaccine confidence by making confidence visible in [the] workplace,” and advised employers to follow these steps:

• Encourage leaders to be “vaccine champions,” invite them to share with staff their personal reasons for getting vaccinated, and explain why it is important to be vaccinated. These leaders should reflect the diversity of the workforce.
• Communicate transparency to all workers about vaccination.
• Create a communication plan to share key messages with employees through, for example, breakroom posters, emails, and other channels. Emphasize the benefits of employees protecting themselves as well as their families, co-workers, and community.
• Provide regular updates on topics such as the benefits, safety, side effects, and effectiveness of vaccination. Clearly communicate what is unknown.
• Make visible employees’ decisions to get vaccinated and celebrate them by, for example, providing stickers for employees to wear after vaccination and encouraging them to post selfies on social media.

Determine When Employees May be Vaccinated. The CDC recommends who should be vaccinated first, and then each state creates its own vaccination implementation plan. Employers are encouraged to check state, city, and county health department websites for the latest information on phased implementation, and determine the time frame, if available, when employees will be eligible for vaccination. Employers operating in multiple jurisdictions should establish a vaccination committee or an immunization champion. This committee or individual should monitor vaccination rollout across jurisdictions and notify workers when they are eligible.
 
Vaccine Mandates. The CDC observed that the Food and Drug Administration (“FDA”) does not mandate vaccination. Whether a state, local government, or employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law. The CDC explained that if an employer requires proof of vaccination, the employer cannot mandate that the employee provide any medical information as part of the proof. Employers who mandate COVID-19 vaccinations can implement (1) medical exemptions for people who may be at risk of an adverse reaction to the vaccine, and (2) religious exemptions for people who may decline vaccination because of a religious belief.
 
On December 14, 2020, the Equal Employment Opportunity Commission released guidance to address COVID-19 employee vaccine policies. Our memorandum to clients on this guidance is available here.
 
Vaccination Options. The CDC recommended that employers should assess options for assisting in the vaccination of their employees. Options include on-site at the workplace and off-site in the community.

• On-site. Employers may wish to consider an on-site vaccination program if they have (1) a large number of workers with predictable schedules, (2) the ability to enroll as a vaccination provider with their jurisdiction’s immunization program, and (3) a location with space sufficient to set up a vaccination clinic while maintaining social distance through the entire process.
  • The planning process for hosting an on-site vaccination program should include input from management, human resources, employees, and labor representatives, if applicable.
  • Employers should contact the health department in their jurisdiction for guidance.
  • Employers may want to engage a community vaccination provider or vendor. Vaccination providers must prepare to monitor for and to manage potential anaphylaxis after vaccination.
  • Workplace vaccination clinics must provide vaccination during working hours and at no charge.
  • Employers should provide easy access to vaccinations for all people working at the workplace, including contractors and temporary employees.
     
• Off-site. The CDC noted that employers may wish to consider off-site vaccination if they are a small or medium organization that does not have the resources to host a vaccination clinic. Other considerations include whether the employer (1) has worker populations that frequently move from one job site to the next, (2) has workers with highly variable schedules, or (3) has a majority of workers who would prefer vaccination in a community clinic to an employer-run clinic.

• Allow employees to get vaccinated during work hours or to take paid leave to get vaccinated at a community site. Some jurisdictions, such as New York, have mandated that employers provide COVID-19 vaccination leave. Our post on New York’s vaccination leave law is available here.
• Support transportation to off-site vaccination clinics that ensures social distancing, such as paying fares for taxis or ridesharing services. Employees may wish to check with their health departments about potential assistance.
• Remind employees of what they need to bring with them as proof of vaccine eligibility.
• Post articles in company communications about the importance of the COVID-19 vaccination, as well as where to get the vaccine.
• Educate and help eligible employees to make their appointments through available channels.
• Make sure employees know that COVID-19 vaccine is provided free of charge.
• Identify other potential barriers unique to the workforce and implement policies to address them.

Best Practices.

• The CDC noted that employers should provide flexible, non-punitive sick leave options for employees with side effects after vaccination.
• Employers should allow time for vaccine confidence to grow. Employers with an on-site clinic should offer more than one opportunity for vaccination. Employers using community locations can provide supportive policies, such as paid leave or transportation support, for an extended period of time.
• Employers may wish to ask for help with COVID-19 vaccine confidence from organizations and individuals who are respected in employee communities.

Other Considerations.

• The CDC noted that if there is not enough vaccine supply for all workers eligible in a phase, employers should develop a plan to prioritize who gets vaccinated first. Prioritization should be done according to risk, age, or underlying health condition; not by work arrangement, for example, by whether an employee is an employee or a contractor.
• Employers may wish to consider staggering employee vaccination to avoid worker shortages due to vaccine side effects.
• The CDC and FDA encourage the public to report possible vaccine side effects to the Vaccine Adverse Event Reporting System. Employers can also encourage employees to enroll in a new smartphone-based tool called v-safe, where employees can quickly report to the CDC any side effects of receiving the COVID-19 vaccine.

Reopening the Workplace. The CDC stated that after employees are fully vaccinated, employers should continue to follow the CDC’s Guidance for Businesses and Employers Responding to COVID-19. This includes wearing well-fitting masks, social distancing, washing hands, and encouraging employees to stay home if sick. If other workplace health and safety measures were installed, they must remain in place. Widespread vaccination of employees may be one consideration for returning to the workplace. Other considerations include:

• The necessity for employees to physically return to the workplace and whether telework options can be continued;
• The level of community transmission of COVID-19;
• The ability of employees to practice social distancing and other prevention measures while in the workplace; and
• State and local mandates for business closure restrictions.

As the COVID-19 situation continues to develop and the federal, state and local governments issue additional guidance, employers need to keep cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.