Farleigh Wada Witt Provides Guidance to Credit Unions Now that COVID-19 Vaccines Open to All

Editor’s Note: The following information is contributed from credit union law firm, Farleigh Wada Witt, on COVID-19 vaccine eligibility and roll out in Idaho, Oregon, and Washington.

Ready, Set, Go: Vaccines and Employees

With the rapid development of several highly effective vaccines against COVID-19, our communities are eager to return to some normalcy. Over the past 12 months, credit unions have met the challenges of not only providing safe means to serve their members, but also a safe workplace.

Effective April 19, all individuals age 16 and older who reside or work in Idaho, Oregon, and Washington are eligible to receive the COVID-19 vaccine. As a result, credit unions will need to navigate a number of issues arising out of the employee’s desire or refusal to be vaccinated.

Role of Employer

A common question right now is whether employers should mandate the vaccine for its employees. Outside of the medical profession, the majority of businesses have reported in various surveys that they will not mandate the vaccine. While the Equal Employment Opportunity Commission has provided guidance on the ability for employers to mandate the COVID-19 vaccine with exceptions to address different guidance protecting employees, most employers have declined to take that step. Employees are adverse to the concept that their employers can make medical decisions for them. Already, legislators in 23 states have proposed laws that would prohibit employers from making vaccination a condition of employment. Additionally, as we will discuss further, both the Americans with Disabilities Act and Title VII, and related state laws, impose restrictions on an employer who mandates a vaccine.

Educate/Encourage

A more common approach will be to educate and encourage vaccination for employees. Based on a January 2021 Gallup survey, 65% of Americans plan to get the COVID-19 vaccine. This leaves one-third of Americans who do not want to receive the vaccine. Taking the time to provide information on how highly effective the vaccines are at preventing death, hospitalization, and severe to moderate symptoms of COVID-19 could help employees make informed decisions. The focus should be on providing information and avoiding shame. Further, as communities push to reopen and favorite past times such as indoor dining and out of state travel for those who are vaccinated become the norm, employees may assess the value of the vaccine in a more positive light.

Human Resources can provide scientifically objective articles and podcasts from health departments and the many health professionals out there who have been offering education and advice on the science behind the vaccines and the new and coming data on the success of fighting the virus. Another critical tool for encouraging the vaccine is for employers to make it as easy as possible to get the vaccine. Options include providing information on the vaccine schedules released by the state health departments and also tips on how to schedule the vaccine. Further, while employees can use state protected paid sick leave hours to obtain the vaccine, credit unions should consider allowing all employees to have paid time off to obtain the vaccine and that they are encouraged to do so as need be.

Also, credit unions should anticipate the need for time off after the second dose of the vaccine due to the often serious side effects. If credit unions want to incentivize employees to obtain the vaccine, they must be aware that such an incentive could create a default wellness plan which has federal tax implications and compliance obligations.

Disability/Religious Protections

Many are aware that the vaccine may not be suitable for individuals due to certain health conditions. Right now, the CDC is advising pregnant women and those who are breastfeeding to consult with their OB/GYN to best evaluate based on specific personal health risks. Under the Pregnancy Discrimination Act, the American with Disabilities Act and other related state laws, credit unions must be aware of the need to not discriminate and also under the ADA of the need to provide a reasonable accommodation to a disabled employee. Treating an employee adversely due to the fact that she has not been vaccinated could result in liability if pregnancy, religion or disability are factors.

The Equal Employment Opportunity Coalition has provided guidance stating that employers can ask employees whether the employees have been vaccinated or ask for proof of the vaccine without violating the ADA which limits the scope of medical of information that an employer can ask for from an employee. Any inquiry about the vaccine should come from Human Resources who can carefully navigate the full conversation and be able to identify any protected information that an employee may volunteer about a disability or health condition.

In addition to certain health concerns, employees may also decline to get the vaccine due to sincerely held religious beliefs. If a credit union is on notice that the employee’s religious belief, practice, or observance prevents the employee from receiving the vaccine, the credit union must provide a reasonable accommodation, unless it would create an undue hardship. Again, this is a conversation for Human Resources to conduct. Title VII and state laws define sincerely held religious beliefs very broadly and we do not want to have someone who does not understand the confines of the law to make a decision which violates the law.

Right Direction

Finally, we can look forward with a positive outlook. As employers, our work will be cut out for us as we move forward with vaccinations and the reopening of our communities. Our state governments and the CDC will be reassessing the current workplace safety restrictions which require social distancing, masking, and remote work for certain positions and will update laws to eventually remove restrictions. Credit unions will need to continue to plan ahead and be ready for changes, but positive change.

Register for the 2021 HR Legal Update Seminar

On May 19, from 10 a.m. to 1 p.m. PDT, credit unions are encouraged to join Farleigh Wada Witt and NWCUA for the 2021 HR Legal Update Seminar, where they’ll discuss new and upcoming changes that impact their current operating environment, including leave laws, workplace safety, wages and hours, and more.

Visit the event page to learn more and register. This seminar’s eligibility for HRCI Certification is pending approval. For questions about registration, please contact Holly Miller, NWCUA Director of Programming.

Posted in Public Awareness.