On February 2, Hogan Lovells partners Melissa Bianchi, David Horowitz, and George Ingham presented a webinar to the Biotechnical Innovation Organization (BIO) on “What Biotech Employers Need to Know about COVID Vaccines and Returning to the Office.” Below are the top 10 considerations discussed in the webinar, and a full video recording containing additional details is available here.
According to current Equal Employment Opportunity Commission (EEOC) guidance, employers are likely able to implement mandatory vaccination policies, however, employers must consider whether they should do so. Employers must consider factors such as the availability of vaccines, the need to provide accommodations to objecting employees, and state and local law issues.
Employers that impose mandatory vaccination programs must be prepared to process exemption requests on the basis of disability, pregnancy, and sincerely-held religious belief. Due to the broad definitions of disability and sincerely-held religious belief, and the legal framework for pregnancy accommodations, employers implementing mandatory programs may face a wide variety of requests that may require analysis to determine whether a “reasonable accommodation” can be made.
The fact that the vaccine has been authorized under an Emergency Use Authorization (EUA) does not prohibit an employer from imposing consequences for refusing to be vaccinated.
Employers can ask employees vaccine-related questions. Questions should be for a clear and legitimate business purpose that is documented, should avoid questions about protected class and genetic information (including family information), and should be maintained confidentially and separate from normal personnel files. For example, asking an employee if the employee is vaccinated, or asking for proof is acceptable, but asking the employee why the employee did not get vaccinated is risky.
Employers should take care before providing information to management about who has been vaccinated, and aggregate and anonymize data so that managers cannot identify which individuals have or have not been vaccinated. Employers who obtain vaccination information from a health plan or health care provider, should note that HIPAA or state privacy laws may apply, requiring employee authorization or consent for the disclosure.
Employers with voluntary vaccination programs have more leeway to set up on-site clinics where the employer or a third party provides vaccines to employees. Employers with mandatory programs can only do this with respect to employees that it has “a reasonable belief, based on objective evidence, that [the] 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.”
Employers that seek to adopt different vaccination rules for different segments of the workplace (e.g., a mandatory program only applying to certain employees) must ensure that similarly-situated employees are treated the same to avoid discrimination claims.
An employer generally can require non-employees (e.g., independent contractors, visitors) to be vaccinated to come on site, as non-employees are not covered by many of the applicable protections that cover employees. That said, employers should consider state and local law which can sometimes grant independent contractors the right to reasonable accommodations.
Currently, employers should not make major changes to business operations based on workplace vaccination rates. New guidance from the federal Occupational Safety and Health Administration expressly states that employers should “not distinguish between workers who are vaccinated and those who are not” in terms of safety measures.
Employers should consider their strategy for encouraging employees to get vaccinated, including leading by example, educating employees about vaccines and when they are available, and considering whether they wish to provide incentives to employees who are vaccinated.
For more information about COVID-19 vaccines and your workforce, please contact the Hogan Lovells lawyer with whom you regularly work.
COVID-19 Report for Life Sciences and Health Care Companies (February 2021)
Increased use of virtual tools, optimized inspectional activities, & enhanced supply chain oversight
2020 OPDP Wrap-up: FDA monitoring drug manufacturers’ use of online communication platforms
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