Vaccination, leave and ADA requirements

We’re hearing a lot about returning to the workplace and questions on if employers can (or should) require the COVID-19 vaccination to do so. Often, this conversation leads to many challenges and complexities, such as the need for accommodations, support communication and resources, and state policies and laws. 

So, after reviewing questions from our most recent webinar, two of our webinar speakers discuss this topic thoroughly. Join Trish Zuniga, lead for leave regulations and Annie Jantz, product lead from leave management services as they talk about vaccination policies, leave impacts and ADA requirements.

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Transcript

Karen Batson: 0:00

Hi everyone. This is Karen Batson marketing manager at Lincoln Financial Group. In today's episode, I'm joined by Trish Zuniga compliance lead for leave regulation and Annie Jantz product lead for Lincoln's leave management services. Both Trish and Annie were speakers in our first webinar of the year, the leave balance. And like most of our webinars, we get quite a few questions from our audience. And one of those questions or a couple of those questions revolved around vaccination and what things employers are trying to answer when dealing with this new situation. So in this episode of Lincoln Absence Advisor, we dive into those questions and the different challenges and complexities employers are looking at when considering their vaccine policies or just how to support their employees. So let's take a listen to what they had to say. Hi Annie and Trish, thanks for joining for today's conversation.

Annie Jantz: 1:01

Hi!

Trish Zuniga: 1:01

Glad to be back.

Karen Batson: 1:02

So we just finished our first webinar of the year. We covered lot of information about leave; various aspects, what we learned from last year, what's ahead, so much information. And on top of that, there's a conversation that's happening with employers, trying to figure out how to get back to work, vaccinations being available and what employers can require. So, in fact, we got questions about that during this webinar. So I wanted to bring you guys together to talk about that specifically. Now, before we jump into some of the direct questions that we received, I wanted to ask from your point of view, what are employers deciding between now, when it comes to like a vaccine policy or considering I should say,

Annie Jantz: 1:45

Yeah, so I'll offer a little bit here and what I've been looking at and, you know, doing a little bit of research and, you know, employers are looking at a variety of different things. So obviously the first one is whether they should mandate the vaccine, right. For people to get back into the office. Um, but they're also looking at incentives. Do they want to somehow provide an incentive for employees who decide to get vaccinated? Uh, do they need to have proof for vaccination? And then also, are they going to allow any time off if they're going to consider providing onsite vaccination, different things like that? So I think there's a lot of different considerations and it depends on, you know, maybe what type of industry they're in and you know, what they're looking at for the health and safety of their employees. Um, the one thing I wanted to say too, when I was looking at this and kind of going over some of the information is there's a recent survey that was done, I thought was interesting for employees and what they ranked as the most important in looking at whether they're getting vaccinated and what their employer was doing and what really ranked the highest was cost. So having no cost or very little cost, right. Um, convenience, you know, so they had an easy way to get the vaccination, but then also having, um, information like resources available to help them figure out what they need to think about and where they can maybe go get the vaccine and the top, which I don't think will surprise anyone, but the top was paid time off for the vaccine. You know, looking at that or recovery after the vaccine, if they would have any symptoms or side effects.

Trish Zuniga: 3:13

And that segues into what I'm seeing employers look at, just from a legal perspective, what they need to consider is whether as Annie had mentioned, they're going to be mandating these vaccination policies or whether they're going to offer it as optional to their employees, because whether it's mandatory or optional does drive, whether they need to offer paid time off or have any employer responsibilities under the type of employer vaccination, mandate, or option that they offer.

Karen Batson: 3:46

Now after the webinar, were you guys surprised that we saw questions about this, especially cause we didn't have vaccination on the agenda. Were you surprised at all?

Annie Jantz: 3:54

No, I wasn't. Yeah. It's pretty big topic. I think everyone's trying to figure out what to do and things are moving fast, a lot of conversations going on.

Trish Zuniga: 4:05

Yeah. And you know, it's only been a quarter since the first vaccines have been sent out and with every phase we're learning, what new mandates or laws that we need to be considering as employers and their administrators roll out new policies in response to all of these COVID actions.

Karen Batson: 4:27

Now, one of the other interesting things that I've been watching lately now that we've done the podcast for a year is about a year ago, now, we did a podcast about the ADA and COVID cause it was just a hot topic, people had questions, um, how it impacted the situation, how things might be changed or how they should view things differently. And I find it interesting that that's coming up and seeing interest at the same time that we're having these conversations about vaccination and leave, um, and requirements of the employer. So I wanted to ask since our last webinar, as well as when we recorded this podcast, is there any additional impact that COVID has had on an ADA process specifically around an employer's vaccination policies or requirements?

Trish Zuniga: 5:12

So we saw vaccines shipped out starting December, 2020, and it was very limited and there was only phased allocation and then production started to ramp up and the vaccine access has expanded and there's greater access to the vaccines. And I think right now a lot of States and jurisdictions have such increased access to the vaccines that they're offering it to, uh, residents age 16 and older already. So what we've seen since the last webinar in the last podcast is that to get back to the workplace, employers have had to consider the impact of vaccines on their workforce. And what we've seen is that there are additional considerations for an employee's return to the workplace considering that these vaccines are already available. And so the EEOC added guidance in its technical guidance document as of December 16, 2020. And since then, we've just been seeing employers taking that guidance into account and applying it to their vaccination leave policies.

Annie Jantz: 6:24

And I can see how this is one of the questions, or I don't know if it's a concern necessarily, but just definitely a question for the employer when you have some employees that may be concerned about the vaccine and their own health condition and what that impact may be. I think the more education that's out there, the more people are getting comfortable, but there's still that question I think, and as we have more in the news where, you know, there are side effects or something comes up, I think you have more people that are raising that. And so just having the ability to keep in mind the ADA and, you know, if somebody raises a question that you have those conversations and go through that kind of process, and I think it's not an easy one. I think this is all new for everyone. So, but there's, there's different things to consider there. So definitely.

Karen Batson: 7:12

And it's good to keep the communication open to your point though. Right. And having dialogue on what you're doing and showing support. I mean, we see these different studies and reports and articles come out about the employee's wellbeing in general, and this is a part of it. If they have concerns or questions, then help address it and put them at ease.

Annie Jantz: 7:30

Right.Yes, absolutely. And that's why I think one of the biggest things that I've seen out of, you know, kind of all of the research and information is just the resources employers are offering and trying to get out to their employees to help them to make their own informed decision, but to have all of that available. So they know where to go. Some reputable sites that'll provide good information to help them understand, you know, the pros and cons or you know, what to watch out for what they need to consider.

Karen Batson: 7:56

Now with the webinar, and we kind of touched upon this, it was a very point blank question was can an employer require our employees that are eligible to get the COVID vaccination and can they ask for proof that they got vaccinated?

Trish Zuniga: 8:11

That is a critical question, but I would have to say that the question isn't just, can you, but it should be, should you require your employees that are eligible to get the vaccine? And this is usually the point where I would encourage employers to talk to your employment counsel, but also just keeping open lines of communication. I would also have to say, talk to your employment counsel, talk to your HR, talk to your employee representatives. It's very difficult to answer this question on a blanket basis because the answer to the question, a very fact specific application of employment laws to your specific business. So your business might be one that is more customer facing. Maybe your business is something that most, if not, all of your employees could do this on a remote basis. So just keep those specific facts in mind as you, the employer formulate your vaccine policy. So just going back to whether you can, I would have to say on a federal level, the EEOC doesn't say outright that you can mandate vaccines, but they have issued guidance stating that mandatory vaccination policies could be allowed if there are carve-outs for exemptions, for disability or religious exemptions.

Annie Jantz: 9:46

Yeah. I think, Trish, one of the things that you said, I think is really important too, when employers are really considering whether they're going to ask for the proof of vaccination and all of that and whether they should and really engaging in their own counsel. But I think it's so important to communicate that decision, right? So if the decision is that you're going to ask for that, you know, depending on what it is and how much information you're allowed to ask for explaining to the employees, why you need it, like, what was the decision behind that? Why did you come to this decision? So at least it's explained so that there's not confusion or somebody feels like maybe they're being asked for information and maybe another employee wasn't like having that documented and explained to employees, I think is important on any of the decisions that are made.

Karen Batson: 10:28

Kind of leads me to my next question. You know, there are reasons let's say you did mandate it. There are reasons where an employee may not be able to. We talked about religious reasons. There might be medical reasons. There may be a personal reason that they don't want to do it. How does an employer respond to that? If an employee is unable to get the vaccination.

Annie Jantz: 10:47

So I think this is a really good question. And I'm definitely curious to hear Trish's response on this one. And so while I, you know, think about this and think about everything that goes into what you're looking at on a, like ADA and considering an employee and you know, the different rights and the regulations and laws that employers have to adhere to, it seems to me again, depending on the situation, cause you're right, there are a lot of different reasons. Someone may not want the vaccination. Um, it's having that discussion with the employee to determine what it is. You know, if there's a medical reason that maybe falls under ADA, looking for an accommodation, trying to work through that, you know, what is it that needs to happen to make sure you're protecting the health and safety of all of the employees? Um, you know, is there a remote work? Is there something else? Are they able to be socially distanced or if there are religious beliefs or there's other personal reasons, I think again, it's having that discussion and understanding what that means to the organization and what the employer's responsibility is. But I don't know if that's a, you know, a really easy one to answer either. And I'd like to get Trisha's perspective on this.

Trish Zuniga: 11:48

Your responsibilities under the ADA, as Annie had mentioned, include a duty to provide a reasonable accommodation to your employees, but that also requires employers and employees to engage in an interactive process. So going back to what Annie said, just talking to each other to determine what that solution is, because it's not an easy question to answer, and there's not one answer for everybody out there. So what does that look like? Does it look like telecommuting? Does it look like any sort of flexible work arrangement that would work for both your business and for the employee? As long as it doesn't constitute an undue hardship, which means, you know, it's difficult or costly or expensive for the employer, then this sort of accommodation can be something that the employer and the employee agree upon.

Karen Batson: 12:48

So what happens if the employer can't provide that reasonable accommodation and it does cause undue hardship?

Trish Zuniga: 12:54

It doesn't mean that the employer should terminate the employee automatically. So what that means is just at this point, the employer may be allowed, or they have a basis to exclude the employee from the workplace. So it just means not having that employee be physically present in the workplace with other employees because that specific employee poses a direct threat to others in the workplace, which again, is very fact specific, right? So you can't just say, Oh, they're not vaccinated. They are a direct threat. So just go through that process of evaluating what the situation is and what the threat is. And if there is any basis for excluding the employee from the workplace. But that doesn't mean that the employer should terminate the employee because as we've said, there could be accommodations that keeps the employee in the workforce.

Annie Jantz: 13:56

Yeah, it is a really tough question, but I think there's so much that goes into it. And Trish, just as you were talking about this too, I think it's, I just wanted to get your opinion on this too, but it's kind of the same answer, whether you are working with the public or not working with the public and I don't, I'm not talking like healthcare. I think that's a totally different situation, but you know, if you have direct, um, working with people directly, or you're just working in an office environment, I mean the health and safety, it's still the same consideration. You're still looking at kind of the same facts. Do you think, or do you think there's other considerations there?

Trish Zuniga: 14:29

No. The health and safety of your workforce and your other employees and your customers are paramount there as well.

Karen Batson: 14:37

Now we often talk about, um, employers dealing with employees in multiple States and the various regulations that are taking place there. What are some of the challenges that employers might encounter with having employees across States when it comes to policies?

Annie Jantz: 14:51

Yeah, so I think this is another one that definitely is probably a big concern for employers that have employees in a lot of locations is just making sure that they understand if there has been some law that they need to adhere to. Now that is, you know, regarding the vaccine. So really I think, and Trish would probably say this as well. Um, but it's, you know, getting your own internal counsel involved your employment counsel, to make sure that you are adhering to all of those and that you're not doing something that you shouldn't do for, you know, you have employees in certain States that you really have to adhere to. What's required of you as an employer, but I think this could be challenging too. And I, I think that as you know, I don't know all the specifics of the different States and what they're doing, but I know I have seen some articles talking about different States, considering some legislation looking at the vaccination. So I think it's something that they have to keep a close watch on.

Trish Zuniga: 15:45

So in the leave and absence world, we've always said that state leave programs are very complex and how they interact with each other when you're a multi-state employer. And in this case with vaccine leaves, you have States that have passed new vaccine, leave laws like New York, and then you have States that have existing paid sick leave laws. So if they don't have a vaccine specifically from the state may still have a paid sick leave law under which leave for taking a vaccine that may be a qualifying leave reason for an employee to take leave. And then you layer in existing wage and employment laws. And this is where the earlier discussion on whether an employer mandates a vaccine program or makes it optional is crucial because if an employer mandates a vaccine, then this could be considered as part of the employee's working hours. So the employer would still be required to pay for that time when the employee goes and gets the vaccine. So there are lots of laws not just leave laws at play here. So as Annie said, you have to contact your employment attorney and just consult some reputable sources on what you need to do and what you need to be thinking about.

Karen Batson: 17:14

I guess this kind of leads to a up question is the employee entitled to paid time off leave if they have a reaction to the vaccine or a side effect, does that fall under the laws that you just kind of discussed or are there other protections for those sorts of situations?

Trish Zuniga: 17:30

And the answer to that is a very lawyerly cop-out it depends. Right? So for those States that have enacted a vaccine leave specifically yes, you're entitled to that time off. So I had been talking about New York, New York has a leave law. That's valid until December 31, 2022, where you can take, leave up to four hours per vaccine injection. And then for a California, you've got paid sick leave until September 30, 2021. And the employee can take leave for vaccine related reasons like attending an appointment, or if he can't work or telework due to vaccine related symptoms. And that's pretty broad because we've seen symptoms ranging from, you know, pretty mild to pretty severe, right. You've got those States where there's not a paid sick leave law or a vaccine leave law. But again, it depends on whether the employer mandated the vaccine or made it optional.

Annie Jantz: 18:36

Right. And just to circle back to when you were talking about the reaction to the vaccine, right? Like it could change into something entirely different if it's that severe reaction, which seems to be few and far between, but definitely it is complicated. And it does depend on what you're looking at. And I don't know if there'll be other changes or other mandates coming out from the States about the vaccine, but definitely a complicated topic.

Karen Batson: 18:59

So I think this is a good point for us to bring up, you know, we've talked about leave, but Lincoln's position on what they provide for leave. So we should clarify, we do not provide any leave products for the vaccination, correct?

Annie Jantz: 19:12

That's correct. We don't. And typically the leave that we've seen associated with the vaccine or the paid leave has been sick leave. And so that is something that is not administered by Lincoln. You know, again, if a complication from the vaccine turned into something more severe, which again, I think is, you know, you don't see that very often. It may turn into something else. It could result in a different type of claim that may be administered, but just the typical three days, two days, whatever it is after that that's paid sick leave is not something administered or time off just for the vaccination.

Karen Batson: 19:46

I know, you know, we've talked a lot about what is allowed. We basically talk, there's a lot of challenges. There's a lot of complexities and there's a lot of communication that needs to take place, but I want to ask what should the role of the employer be? Like, what should it be if you were to sum that up?

Annie Jantz: 20:03

Good question. Um, and I think there's a lot of challenging. That's a little challenging, I think, because I think there's a lot that goes into that for the employer to really make that decision, right. What type of industry they are. I think that plays a big part in it. And I think they need to look at their employees and at a minimum, I guess what I would say is, you know, have some flexible arrangements for people to get the vaccine, whether that includes the paid sick leave, or if it's mandated that they have to provide a paid sick leave for that and, you know, provide resources, information, and just be clear, communicate where you stand as an employer on the vaccination, whether you're encouraging people to get it, if you're going to it explaining Why you came to those decisions. So that employees understand that. I think that's probably the most important really is just all of that communication and communicate often, like I said, there's a lot of things that change, like you read the news and something different comes up. And so I think, you know, you can get information overload. So having your employer kind of help with that, I think is a good thing. But that's what I would say. I think there's a lot of decisions the employer has to make, but those are some things I think they really need to consider at a minimum.

Trish Zuniga: 21:15

Yeah, and I'd have to add just the employer should remain informed, consult all sorts of resources. Um, especially if you're a multi-state employer. And once you have that information, talk it out with your attorney, talk it out with your human resources, don't make any rash decisions, empower your employees to come to you and say, um, whether they want the vaccine or whether they want an exemption from the vaccine, they just need to be able to tell you that and the employer and the employee need to engage in an interactive conversation about it.

Annie Jantz: 22:00

I really like that Trish like empowering your employees to come forward. And I think that's great.

Karen Batson: 22:05

That's all I had for questions for you guys. So I appreciate you having, having the conversation and walking through all this information that can be pretty challenging for the employers to digest.

Annie Jantz: 22:16

Yeah, absolutely. Thank you.

Trish Zuniga: 22:17

Thanks for having us.

Karen Batson: 22:19

Thank you so much, everyone for listening today and a big thank you to Trish and Annie for joining me. We hope you liked today's episode and will tell us by rating us sharing the episode or subscribing to Lincoln Absence Adviser on Apple, Spotify, or wherever you get your podcasts.

Disclosures: 22:36

The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.