We've complied a list of questions and answers about the COVID-19 vaccine on this page. Click on each question below to navigate to the corresponding answer. Information is current as of December 9, 2020.

GENERAL STATEMENT: Employee vaccination policies are sensitive and controversial issues for many individuals that can give rise to legal risk in fluid and evolving legal environment. Accordingly,
  • Consideration of a vaccination policy, especially a policy that requires vaccination, should be undertaken with great care.
  • Any vaccination policy should be fully documented with appropriate forms and procedures to assure there is no misunderstanding by employees.
  • Any vaccination policy, especially a policy that requires vaccination, should be based upon compelling business necessity and not subjective judgment.
  • Any vaccination policy and related forms and procedures should be reviewed by legal counsel prior to implementation as there may be HIPAA, ADA, EEOC, OSHA, public health regulation or other legal issues.
  • Any vaccination policy already in effect should be periodically reviewed by legal counsel as the law respecting vaccination policies is fluid and evolving.

  1. Can I require that my employees get vaccinated for COVID?
  2. Should I mandate that my employees get vaccinated for COVID?
  3. Can I require some employees but not all get vaccinated? What criteria should I use?
  4. If most of my workforce gets vaccinated, can we stop wearing masks?
  5. If I do require vaccination, what policies and procedures should I have in place to protect my company from a legal claim?
  6. If I already require flu shots and TB tests, can I just tack COVID on to the policies I have for those communicable illnesses?
  7. What if my employee objects on medical or religious grounds?
  8. If I require it, do I need to give my employees paid time to get the vaccination?
  9. If I require it, do I pay their mileage to drive to get the test?
  10. If I do require it, how should I safeguard the medical verification that they got it?
  11. If I don’t require it, is it OK if I ask employees to voluntarily tell me if they are vaccinated and can I assign them duties based upon this information?
  12. What are the pros and cons of having the vaccine administered on site like flu shots and TB tests?
  13. Will the medical information I request about the vaccination result in my company being covered by HIPAA?
  14. If my employee has an adverse reaction to the vaccine, is that covered by Worker’s Compensation should I require the vaccination?
  15. What if my employee has an adverse reaction to the required vaccine but doesn’t seek medical treatment?
  16. Do I need to tell employees to let me know about adverse reactions they have if the vaccine is required so I can file a First Report?
  17. Once there is a vaccine then I don’t need to worry about filing Worker’s Compensation Claims in the future for any employee who claims they contracted COVID in the workplace, right?
  18. Will my health insurance plan be charged for these vaccines?
  19. Can I direct my employee to the lowest cost vaccine, or the first vaccine available?
  20. Can I require my clients to provide proof of vaccination before I allow my employees in their facility or allow them in my facility?
  21. Can I require my vendors to provide proof of vaccination before I allow my employees in their facility or allow them in my facility?
  22. Can my clients require me to provide proof of employee vaccination when my employee enters their home or premises to do business?
  23. I have a severely immunocompromised employee who wants all of their co-workers to be vaccinated because they are unable to be vaccinated. I am not mandating my employees get the COVID vaccine at my company. Should I consider this request an accommodation for their disability and require the co-workers get vaccinated?
  24. What if an employee has no medical or religious grounds to refuse mandatory vaccination, but simply doesn’t want to because they don’t think it’s safe, is afraid of needles, is afraid of an adverse reactions, feels the employer is overreaching into their personal health or whatever? Then what?

1. Can I require that my employees get vaccinated for COVID? Possibly for some employees where there is business necessity and any accommodation requirements have been met. See question #7.


2. Should I mandate that my employees get vaccinated for COVID? That depends on many factors. If you have business necessity for mandating vaccination (for example, your employees provide personal care to high risk residents of a residential care facility) mandating vaccination may be the right course of action. If you are required by health department or law to do so, then you must. If there is no legal or business case for mandating vaccination, but it simply represents the personal preference of management, mandating vaccination may not be justified.


3. Can I require some employees but not all get vaccinated? What criteria should I use? Yes, you can require some but not all employees to get vaccinated. You should assess whether some employees are required to be vaccinated by health department or law. You should assess the level of risk your employees represent to clients and also to each other as they go about their daily tasks. For example, it may be hard to justify mandating vaccination for an employee who works 100% of the time in their home. However, a home health aide who provides personal care for many high-risk individuals in their homes may be an appropriate candidate for mandatory vaccination.


4. If most of my workforce gets vaccinated, can we stop wearing masks? Follow CDC and local health department guidance and any applicable laws on mask wearing in the jurisdictions where you do business and where you have employees located before discontinuing mask wearing and social distancing.


5. If I do require vaccination, what policies and procedures should I have in place to protect my company from a legal claim? You should have a good business case for doing so and should have written policies, forms and practices reviewed by your legal counsel to ensure you are complying with all applicable laws in the jurisdictions where you have employees located. You should follow your policies consistently and if exceptions are made to your policies, the rationale for those decisions should be documented. Termination decisions based upon failure to get vaccinated should be reviewed by legal counsel before they are finalized.


6. If I already require flu shots and TB tests, can I just tack COVID on to the policies I have for those communicable illnesses? Take this opportunity to have your written policies, forms and practices reviewed by your legal counsel to ensure you are complying with all applicable laws in the jurisdictions where you have employees located for the vaccines and tests you currently require, along with COVID-19.


7. What if my employee objects on medical or religious grounds? Make sure that your consent forms offer this option. Work with your legal counsel to develop a framework for assessing and documenting these objections. Termination decisions based upon failure to get vaccinated due to medical or on religious grounds should be reviewed by legal counsel before they are finalized.


8. If I require it, do I need to give my employees paid time to get the vaccination? Yes. Requiring the vaccine makes it a job requirement, which is then compensable time. You could also offer paid time for employees who voluntarily go get vaccinated if you wish to, but you don’t have to if it’s voluntary. If you require vaccination, consider whether you wish to direct employees to location close to where employees live or work, or have the vaccinations performed on site.


9. If I require it, do I pay their mileage to drive to get the test? If you reimburse your employees for mileage for driving on company business, follow your standard reimbursement practices when sending them to get vaccinated.


10. If I do require it, how should I safeguard the medical verification that they got it? Keep this information segregated in a confidential limited access area of the employee’s file as you would with any medical information. This information ideally should be forwarded directly to HR and not to management. Note that specific medical information should not be shared beyond those with a need to know and not with the employee’s direct supervisor.


11. If I don’t require it, is it OK if I ask employees to voluntarily tell me if they are vaccinated and can I assign them duties based upon this information? Perhaps. Review your rationale and proposed process with your legal counsel. Be especially careful if the reason that the employee chooses not to be vaccinated is for medical or on religious grounds. You will want to be sure your work assignments are not considered retaliation for disability or religious beliefs.


12. What are the pros and cons of having the vaccine administered on site like flu shots and TB tests? Speed and convenience top the list of pros for having the vaccine administered on site. You will also have certainty regarding the administration of the vaccine. Cons may include situations where your company is a covered entity under HIPAA and will not only gather but maintain protected health information in the health screening process, prior to the vaccination. That information will need to be secured in accordance with your obligations as a HIPAA covered entity. (Again, if you are one.) Even if you are not, you will need to take measures to preserve employee privacy while receiving the vaccine.


13. Will the medical information I request about the vaccination result in my company being covered by HIPAA? Generally, not. Unless your company is a covered entity under HIPAA, health information provided to you by employees generally does not result in your having HIPAA obligations. You must still follow good safeguarding practices regarding any medical information provided by employees or their medical providers.


14. If my employee has an adverse reaction to the vaccine, is that covered by Worker’s Compensation should I require the vaccination? Perhaps. You only need to file a worker’s compensation claim if the employee seeks medical care or misses time from work. Time lost from work has to be in conjunction with a doctor’s note, which means that only if there is medical care sought for the side effects would a claim need to be filed. Example: If an employee simply called in and noted they were not feeling good and were staying home for the day, you would NOT need to file a claim for workers compensation. If they have a severe reaction and need to seek medical treatment, then it would be wise to turn in a claim.

 

15. What if my employee has an adverse reaction to the required vaccine but doesn’t seek medical treatment? Whether or not a First Report is filed depends on the specific facts of the situation. If the employee is seeking medical treatment for an adverse reaction, then it would be correct to send in a First Report. If the employee is having vague symptoms and stays home for a day but seeks no medical care, then no claim needs to be reported. If an employee is out for several days, it would be wise to have them seek medical care, just as you would in any situation where your employee is off work for more than a couple of days. Worker’s Compensation benefits in Wisconsin do not pay for the first 3 days of lost time (3 day waiting period), so if there is less than 3 days missed with any adverse reaction and no medical treatment, they still would NOT need to file a First Report in Wisconsin. If the facts of your situation are complex, or, if your employee is in a different state, contact your Worker’s Compensation Insurance Counselor for guidance.


16. Do I need to tell employees to let me know about adverse reactions they have if the vaccine is required so I can file a First Report? Yes. This should be part of your disclosure forms.


17. Once there is a vaccine then I don’t need to worry about filing Worker’s Compensation Claims in the future for any employee who claims they contracted COVID in the workplace, right? It is believed that not everyone who gets a vaccine will be 100% protected from COVID. And certainly, there will be employees who are unwilling or unable to get vaccinated who won’t be immune to COVID. Even after widespread vaccination distribution, any time an employer has an employee that is quarantined or hospitalized with COVID, the employer should be aware that that employee may try to make the claim that their COVID was as work-related. If an employee makes a request to their employer that their COVID disease be found as work-related, the employer should always file a First Report. This does not mean that the insurance adjuster will pay the claim, but it does mean that the risk has been transferred to the insurance carrier and away from the employer. It also means that any litigation costs would be covered under the worker’s compensation claim, relieving the employer of that cost.  


18. Will my health insurance plan be charged for these vaccines? At this time, we believe COVID-19 vaccinations will be provided free of charge by the US Government.


19. Can I direct my employee to the lowest cost vaccine, or the first vaccine available? Perhaps. At this time, we believe there are going to be different vaccines available to different populations at different times. Whether those vaccines may be contraindicated for certain populations (i.e. one type of vaccine may be deemed unsafe for people with certain health conditions while other vaccines are appropriate for them) is unclear. Review your proposed directives with legal counsel prior to moving forward.


20. Can I require my clients to provide proof of vaccination before I allow my employees in their facility or allow them in my facility? Perhaps. Review your proposed policy with legal counsel prior to moving forward. If you are an organization with contractual obligations to provide services, or you are required by law to serve certain populations, you may have limitations as to the restriction of clients entering your facility or your employees accessing client facilities.


21. Can I require my vendors to provide proof of vaccination before I allow my employees in their facility or allow them in my facility? Perhaps. Review your proposed policy with legal counsel prior to moving forward. Consider being proactive in notifying your vendors so that they are prepared with the documentation you require.


22. Can my clients require me to provide proof of employee vaccination when my employee enters their home or premises to do business? Perhaps. Review your contractual obligations, if they exist, to determine what legal requirements you may have to perform services to the client. If you decide to provide certification to the client, review that certification format with your legal counsel and property and casualty insurance consultant. If you have employees unable to be vaccinated, determine the process you will use relating to not assigning them to work for these clients.


23. I have a severely immunocompromised employee who wants all of their co-workers to be vaccinated because they are unable to be vaccinated. I am not mandating my employees get the COVID vaccine at my company. Should I consider this request an accommodation for their disability and require the co-workers get vaccinated? If your employee meets the definition of a qualified individual with a disability under the Americans with Disabilities Act, then it is expected that you will engage in the interactive process with them if they request an accommodation based upon their disability to determine if an effective accommodation can be offered. Follow and document the interactive process as you would with any accommodation request. Imposing the risk of an adverse reaction to the vaccine or violation of religious beliefs on your other employees may not be a reasonable accommodation. Seek the guidance of your legal counsel in approving or denying an accommodation that would impact other employees.


24. What if an employee has no medical or religious grounds to refuse mandatory vaccination, but simply doesn’t want to because they don’t think it’s safe, is afraid of needles, is afraid of an adverse reactions, feels the employer is overreaching into their personal health or whatever? Then what? Have a plan to address this situation ahead of time. Do you terminate employment? Is it an option to allow the employee to work remotely? Do you put the employee on a leave of absence until COVID numbers in the state/county come down? Do you lay them off temporarily or permanently? Run your plan by your legal counsel prior to taking adverse employment action against the employee.