Helping Employers Prepare for the Covid-19 Vaccine

Written by Genevieve Webster & CJ Pearl

 

Wait what? There’s a vaccine??

 

Maybe soon….but not yet, sorry!  be the change HR is just so proactive in trying to help that we wanted to prepare you now, rather than scramble once it’s out there. 🙂 

 

So why should I be thinking now about something that doesn’t exist yet or may not be relevant for months?

Much like Betty White, Covid seems like it’s going to be around for a while (though we’re really hoping Betty will come out ahead!).  It is helpful to start thinking about how your company will handle vaccines now, because as we approach the end of the year and you plan your budgets for 2021, Covid responses should be a factor. Similar to how the new Covid leave law (FFCRA) possibly impacted your business over this past year, vaccines and how they are handled in the workplace could now as well. Potential factors impacting your bottom line could be: paying for the vaccine, giving time off to get the vaccine, and new requirements relating to health and safety policies. 

 

Does this mean you can advise us exactly what to do now?

No.  Unfortunately, even though it might seem like it at times, your friends at be the change HR are not in fact psychics. However, while we may not be psychics, we are HR experts, and we have also partnered with employment attorney, CJ Pearl of Pearl Legal, APC (one of the top L&E lawyers in California as well as an instructor in UCI’s Human Resources Management Program) to give you our educated guesses. So let’s dive into some questions that may come up when the vaccine is rolled out! (Please note, this is not legal advice, but our own educated guesses, as the situation is fluid and changing.  If you have questions please discuss with your HR Consultant or a legal representative.)

  • Q: Can we require that employees get the vaccine?
    • A: Most likely not, unless your business involves front line workers, medical personnel, or the like. You can suggest that they get it, and you can make policies and procedures around it, but you would also have to allow for exemptions, such as those made on religious grounds, or review other accommodation requests as applicable.
  • Q: Do we (the company) have to pay for the vaccine?
    • A: Yes. If you are making it part of your policy and suggesting that employees get it, it could be categorized as a business expense and we would advise that it should be covered by the company. (Remember, the last thing you need is to walk yourself into a potential class action or PAGA lawsuit for failure to reimburse for business expenses).
  • Q: What if someone has a reaction to the vaccine? Do we have to give them time off? Do we have to pay them during that time?
    • A: Most likely, yes. Again, if you are recommending it for employees, then it becomes a condition of their employment and time that is controlled by the company, so you should pay for it like you would sick time  This scenario could also have workers’ compensation implications and is something you should discuss with your insurance brokers.
  • Q: Can I ask a candidate during an interview if they’ve been vaccinated?
    • A: Not exactly. This would probably be similar to asking if a candidate had the right to work in the United States. You can ask if they have the right to work, but you can’t ask what type of visa, etc. For vaccines, you could probably say something like “Our company abides by CDC policies to help safeguard the workplace against COVID. If hired, could you provide documentation showing vaccination or provide an opt-out of vaccine attestation.”
  • Q: Once a vaccine exists, can we stop doing all these social distancing measures in the office, like separating our desks and putting up plexiglass?
    • A:  This will be up to the CDC and federal and state OSHA, but most likely these measures would be slowly phased out, depending on how much of the population is vaccinated and how quickly they are able to roll it out. For now, plan on keeping these safety measures in place and continue to monitor (and maintain compliance with) your internal safety protocols.

 

Not vaccine-related, but something else to think about

  • Q: What if I see on social media that my employees aren’t social distancing on the weekends? Can I do anything about it?
    • A:  You can educate your staff about the risks of not following CDC guidelines, but you need to be aware of the legal risks of disciplining employees for things they do off-duty. Some states (including California!) have “lawful off-duty” statues and anti-discrimination laws you need to keep in mind, as well as potential FLSA issues. That said, there are safety measures your company could take to make sure employees that may have been in contact with others/positive cases are tested and proven negative – and this could include leave measures or mandatory remote work.  Talk with your consultant if this is an area you want to explore more.

 

More to come on this as information develops, so watch this space! We are always working to obtain all necessary information to assist our clients as to these issues and we will pass along all such information for you as we get closer to a vaccine rollout. But in the meantime, if you have any questions please feel free to reach out to your HR consultant!