While most employers aren’t mandating the COVID vaccine just yet, they still must tread carefully when it comes to managing and tracking vaccinated vs. non-vaccinated employees.
While the need to track those vaccinated can differ depending upon the industry, there are certain pitfalls to avoid in managing the process, experts say, including asking questions that could be perceived as a medical inquiry.
"The question is can employers ask if the employee is vaccinated?" says Domenique Camacho Moran, a partner at Farrell Fritz in Uniondale. "The answer is yes, but the challenge is that they want to be careful about asking any other questions."
Asking further questions such as why they’re not getting vaccinated may result in disclosure of medical information that violates the Americans With Disabilities Act, she says.
So employers have to ask themselves what’s the benefit of knowing if employees are vaccinated, says Camacho Moran. "It could potentially cross lines of a medical inquiry."
Still, there could be reasons why employers may want to know, says Karla Grossenbacher, chair of Seyfarth Shaw LLP’s Washington, D.C. office’s labor and employment practice.
As time goes on there could be infection control practices that could be rolled back based on vaccination status, Grossenbacher says. It also could depend on the industry you’re in and exposure. The Centers for Disease Control and Prevention has stated that if there’s a COVID exposure at a workplace those who are fully vaccinated wouldn’t have to quarantine, she adds.
Megan Millevoy, chief people officer at Melville-based Adjuvant.Health, a spinoff of Allied Physicians Group, a privately owned health care group specializing in pediatrics with about 450 employees, says it hasn’t mandated employees get the vaccine yet, but says there’s a benefit to keeping track of who's been vaccinated.
"We require the measles vaccine and track it," she says. "We anticipate the importance down the road of protecting our staff against the COVID virus and protecting any patients that can’t get the vaccine."
They’re tracking it through their ADP HR/payroll system and asking that employees voluntarily send proof of vaccination.
To put employees at ease, Adjuvant.Health made available to employees an informational webinar and several offices also held educational lunch- and-learns, Millevoy says. They also did a survey on whether employees would be getting the vaccine and had over 80 responses from those that had gotten vaccinated or planned to, she says.
If there’s a legitimate business reason for tracking, such as for those in the health care field or for travel purposes, then tracking may be beneficial, experts say.
But if you do track such information "you should treat the information as confidential and collect it in a secure manner," says Grossenbacher of Seyfarth Shaw.
If you take a copy of the card, keep it where you keep employee medical records, she says.
"Those that are tracking it are handling it like they would any other medical records," says Jose G. Santiago, general counsel at Farmingdale-based Alcott HR.
But generally speaking, most employers presently aren’t asking if employees have been vaccinated or tracking it, he says.
That could change as vaccines become more readily available, but the fear of asking if someone’s been vaccinated is that it could lead to allegations that non-vaccinated employees were treated differently, he says.
Instead, Santiago finds clients are providing educational information on the vaccine’s safety to help encourage employees to get vaccinated.
That’s the case for Melville-based Henry Schein, Inc. which has "put together an internal communication campaign to explain the benefits of the vaccine and to provide information to our team so they know where and how to get vaccinated if they wish to," says Lorelei McGlynn, senior vice president and chief human resources officer.
The distributor of medical and dental supplies isn’t "currently tracking vaccination rates, and we would note that the vaccine roll-out hasn’t yet reached the age groups that represent the majority of the team based in Melville," McGlynn says. "We are actively evaluating tools on the market to help us track vaccination information in the future, and keeping abreast of all relevant federal, state, and local rules affecting vaccinations and the workplace," she says.
Gov. Andrew M. Cuomo recently signed legislation that entitles employees up to four hours of paid time off per vaccination dose, says Daniel Carrascal, an associate at Meltzer, Lippe, Goldstein & Breitstone, LLP in Mineola.
EEOC guidance on whether you can incentivize employees beyond that isn’t clear, he says, and he hasn’t seen employers offer incentives beyond that.
"If there’s two vaccine doses, they’re already paying for eight hours," Carrascal says.
Also if you incentivize people too much, it could be interpreted as you’re mandating it, he says.
"I would tread lightly in asking and tracking it," says Carrascal. "I would advise clients not to ask unless there’s a legitimate business reason."
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Education is a popular tool used by companies to encourage vaccination. A recent survey by Littler Mendelson, P.C., found that 87% of employers surveyed planned to encourage workers to get vaccinated by providing them with vaccine-related information.
Source: Littler Mendelson, P.C.
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