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Dealing with COVID Vaccination Status Friction Points with Employees

by Inoventive Solutions
November 23, 2021

The controversy over COVID-19 vaccine mandates in the workplace continues growing and human resources are sounding the alarm on how employers should approach the matter.

While the Equal Employment Opportunity Commission and impending OSHA regulations will provide some cover to employers who want their employees to get vaccinated, they need to make sure that they follow certain steps in dealing with those who refuse to have a jab, won’t say if they are vaccinated or are claiming a religious or medical exemption from getting inoculated.

The California employment law firm of Shaw Law Group LLC. recently held a webinar on a number of friction points that could get employers in hot water. Here are some tips to avoid getting sued:

  • If you require your staff to disclose their vaccination status, treat those who refuse to divulge their status as unvaccinated. There is no point in continuing to hound someone about giving the information if they don’t want to. Just assume they are unvaccinated for the purposes of your office rules.
  • If you have set rules requiring your workers to be vaccinated, do not automatically put someone who won’t get vaccinated on a leave of absence if that is your policy. Instead, treat it like an Americans with Disabilities Act request and enter into a meaningful discussion if they request accommodation.
    During this time, you have to consider alternative accommodations, such as requiring them to always wear a mask at work and submit to weekly testing.
  • If you are going to accommodate workers who don’t get vaccinated, you as the employer are obligated to cover the costs of such accommodations (like those in the above bullet point). That also applies to employees who refused to get vaccinated on religious or medical grounds.
  • Have a process in place for handling requests for accommodations. A request for religious accommodation can put the employer in a quandary since they don’t want to require proof of what part of the person’s religion requires them not to get vaccinated. Shaw Law Group warns: “And, do not question the sincerity of an employee’s stated religious belief, unless you have an ‘objective’ reason to do so.”
  • There are no laws or regulations requiring employers to provide a “reasonable accommodation” for political, social or secular personal beliefs that may affect why an employee refuses to get vaccinated.
  • If you have an employee who refuses to participate in the accommodation process and provide documentation backing up their religious or medical exemption request, deny the request.

HIPAA Privacy Rule considerations

Meanwhile, the Department of Health and Human Services’ Office for Civil Rights has issued guidance regarding how the HIPAA Privacy Rule affects employees’ disclosures of their COVID-19 vaccination status.

Employers can require employees to disclose whether they have received the COVID-19 vaccine, according to the guidance. That includes requiring them to disclose their status to a client or another third party like a vendor.

Why is this? HIPAA’s Privacy Rule does not regulate the health information an employer can request from its employees as part of the terms and conditions of employment.

Employers who require staff to provide proof of vaccination status are required to keep all documentation or confirmation of vaccination status confidential, under this rule. Any such documentation must not be stored in the employees’ personnel files and must be kept separately.

Finally, your employees are free to disclose their vaccination status to other employees, customers, vendors or trade partners, as the Privacy Rule does not apply to such circumstances.

The takeaway

As more Americans get vaccinated, there is also a significant portion of them that will continue refusing to get inoculated for a number of reasons.

To avoid being sued for overstepping your authority as an employer, if you are requiring vaccinations, make sure you put in place procedures for handling requests for religious or medical accommodation.

You’ll also need to decide how to handle employees who won’t divulge their vaccination status or are refusing vaccination on grounds other than religious or medical reasons.

Finally, if you decide not to require staff to get vaccinated, decide how you will accommodate unvaccinated workers in the workplace, such as requiring full-time masking and weekly COVID-19 testing.

"unvaccinated
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Employers Mull Higher Health Plan Cost-Sharing for Unvaccinated Staff

by Inoventive Solutions
August 24, 2021

Some employers are considering a new incentive for their workers to get vaccinated against COVID-19: Charging them higher health insurance premiums if they don’t.

A recent brief from consulting firm Mercer reported that employers are looking at surcharging the health insurance premiums for employees who refuse vaccination for reasons other than disability or sincere religious belief. Many employers apply similar surcharges for employees who use tobacco.

The news comes as the Delta variant of the coronavirus that causes COVID-19 has sent infection rates soaring, with reports indicating that most new cases are occurring in people who have not been inoculated.

Employers may choose this option for a simple reason: The large costs of hospital stays and treatments for COVID-19 patients. When health plans incur large claim costs, they must either accept lower profits or make up the difference by spreading the costs among plan participants. Charging higher premiums penalizes vaccinated and unvaccinated employees alike.

The U.S. Equal Employment Opportunity Commission has said that it is permissible for employers to require workers to be vaccinated. However, many employers have been hesitant to take that step, fearing negative employee reactions, waves of resignations and bad publicity.

Freedom of choice

Surcharging insurance premiums for unvaccinated workers may be an appealing alternative for some employers. Rather than ordering employees to get vaccinated, they would leave them free to choose.

Those who would rather bear higher costs as a consequence of refusing a vaccine would be free to make that choice. In turn, vaccinated employees would not have to subsidize the health care costs of colleagues who make riskier decisions.

A Mercer spokesperson has estimated that any surcharges would be in the range of $500 to $1,300 per year.

Extra costs like that might induce reluctant workers to get the shots. If unvaccinated employees decide to get vaccinated in order to avoid a surcharge, the workplace should be safer and more productive. Absenteeism due to illness can negatively impact productivity.

The takeaway

Employers need to consider the following before implementing surcharges:

  • The EEOC has provided guidelines for employers wishing to offer vaccine incentives. Employers should stay within those guidelines.
  • Are the incentives necessary? They might not be in areas or workplaces where vaccination rates are already high.
  • The line between “encouraging” and “coercing” employees to get vaccinated is not well-defined. Employers should avoid imposing surcharges that could be viewed as coercive.
  • Some employees have pre-existing health conditions that make the vaccinations unsafe. Others seriously practice religions that forbid their use. Federal law requires employers to accommodate these workers.
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New Rules Require Health Plans to Cover COVID-19 Vaccines, More

by Inoventive Solutions
December 9, 2020

The Trump administration has issued new interim final rules that set out accelerated coverage requirements for COVID-19 preventative services and covering out-of-network testing for the coronavirus.

There are two parts to the interim final rules:  

  • One requires that COVID-19 preventative services – including vaccines – be covered without any cost-sharing on the part of plan enrollees.
  • The second creates a reimbursement formula for insurers to pay for COVID-19 testing conducted on their enrollees by out-of-network providers.

The new rules, which implement important parts of the CARES Act, were rolled out by the Treasury, Labor, and Health and Human Services departments.

If you are a plan sponsor, you need to know how this affects your group health plan so you can help your staff understand how testing and preventative COVID-19 services are covered.

COVID-19 preventative services

The CARES Act requires that COVID-19-related preventative services be covered within 15 business days after a doctor recommends that a patient needs them.

COVID-19 preventative services must be covered without any out-of-pocket costs on behalf of health plan enrollees, whether they receive those services inside or outside their plan’s provider network. The reason for this is that as vaccines start rolling out, not all providers may have access in the beginning.

The rules are required to ensure that people who need vaccines can access them without any hardship to help put an end to the pandemic.

Under the rules, insurers must pay out-of-network providers a “reasonable amount,” which would be determined by the prevailing market rates that providers are charging health plans for the service. That may be the Medicare rate, the regulations note.

The rules cover more preventative services than just vaccines. They must also cover services that are “integral” to delivering preventative services, such as administrative costs.

Finally, if a preventative service, including a COVID-19 vaccine, is not billed separately from an office visit, and the primary purpose of the office visit is to deliver the recommended service or vaccine, the plan or insurer may not charge cost-sharing for the office visit.

COVID-19 tests by out-of-network providers

The new rules also set out the parameters for how health plans will pay out-of-network providers for COVID-19 diagnostic tests they perform on the latter’s enrollees.

On testing, the CARES Act requires that:

  • Health care providers post on their websites the cash price or any lower negotiated price for COVID-19 diagnostic testing. The “cash price” is the charge that applies to a walk-in patient who pays cash for the service.
  • Health insurers pay out-of-network providers of COVID-19 diagnostic tests the price posted on the provider’s website during the public health emergency.

The takeaway

If you sponsor a group health plan, you should communicate the new rules to your participating employees so that they are aware of the no out-of-pocket rules for COVID-19 preventative services. 

You should also keep up with the news about when vaccines will be rolled out in your area, so you can encourage your staff to get vaccinated.

The new rules will sunset at the end of the public health emergency. Currently, that’s slated for Jan. 21, 2021, but will likely be extended as it is unlikely a vaccine can be rolled out en masse by that time.

"COVID-19
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The Big Question: Can Employers Require Workers to Vaccinate?

by Inoventive Solutions
November 24, 2020

As the COVID-19 pandemic rages on and more employers bring staff back to the workplace, many businesses are considering implementing mandatory vaccination policies for seasonal flus as well as the coronavirus.

A safe and widely accessible vaccine would allow businesses to open their workplaces again and start returning to a semblance of normalcy. But employers are caught in the difficult position of having to protect their workers and customers from infection in their facilities as well as respecting the wishes of individual employees who may object to being required to be vaccinated.

The issue spans Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and guidance. With that in mind, employers mulling mandatory vaccination policies need to consider:

  • How to decide if such a policy right for the company,
  • How they will enforce the policy,
  • The legal risks of enforcing the policy, and
  • Employer responsibilities in administering the policy.

Proceed with caution

A number of law firms have written blogs and alerts on the subject of mandatory vaccinations, and the overriding consensus recommendation is to proceed with caution. 

In 2009 pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated that both the Americans with Disabilities Act and Title VII bar an employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs – even during a pandemic.

The guidance stated that under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination.

In these cases, the employer could be required to provide accommodation for these individuals (such as working from home).

Additionally, the employer would have to enter into an interactive process with the worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. This could include:

  • The use of personal protective equipment,
  • Moving their workstation to a more secluded area,
  • Temporary reassignment,
  • Working from home, or
  • Taking a leave of absence.

One issue that employment law attorneys say may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaxxer,” or someone who objects to vaccines believing that they are dangerous. In this case, depending on which state your business is located, you may or may not be able to compel an anti-vaxxer to get a vaccine shot.

Protecting your firm

To mount a successful defense of a vaccination policy if sued, you would need to be able to show that the policy is job-related and consistent with business necessity. And that the rationale is based on facts, tied to each employee’s job description and that you enforce the policy consistently without prejudice or favoritism. 

Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone that is covered by the ADA or Title VII for refusing a vaccine.

Also, you will need to project and safeguard your employees’ medical information, under the law.

The takeaway

A number of employment law experts say that once a vaccine is widely available, most employers will likely have the right to require that workers get it, as long as they heed the advice above about the ADA and Title VII. Until then, you may want to consider following the 2009 guidance.

If you do implement a policy requiring vaccination, consider:

  • Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.
  • Allowing employees to opt out entirely if they have medical or religious objections.
  • In the event of a medical or religious objection, you must engage in an interactive process to determine whether the individual’s objections can be accommodated.
  • Including safeguards for keeping your employees’ medical information confidential.
  • Not abandoning your other efforts to keep your workplace safe, such as the use of social distancing, regular cleaning and disinfecting, and the use of personal protective equipment.
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