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Employer COVID-19 Policy Management

Carrie B. Cherveny, Esq., Chief Compliance Officer, Employment Law and Employee Benefits, South Region, HUB International

Employer COVID-19 Policy ManagementCarrie B. Cherveny, Esq., Chief Compliance Officer, Employment Law and Employee Benefits, South Region, HUB International

She has 20 years of combined experience in employee relations working on the management side providing human resources, employment law, and employee benefits legal guidance. Carrie works closely with clients to identify compliance risks across the organization and develop responsive strategies and solutions that ensure compliance and further the overall organization goals. Part of Carrie’s focus is risk mitigation when it comes to various insurances such as health and welfare programs and employment practices liability. Carrie partners with the HUB clients in various industries such as hospitality/restaurant, medical/hospitals, manufacturing, and white-collar businesses to identify various organizational risks and develop responsive strategic solutions.

As the COVID-19 pandemic continues to evolve employers’ interest in vaccination programs continues to increase. As threshold matter, employers must decide whether to mandate, motivate, or educate employees to receive the vaccine. Vaccine programs will require employers to manage employee data – the nature of that data will vary based on the employer vaccine policy.

1. Mandate

Employers adopting a mandatory vaccine program will face the greatest complexities. Mandatory programs require a significant about of data and employee management and monitoring. To begin with, employers must provide an avenue for an employee be excused from the mandate because of:

1. An underlying health condition (Americans with Disabilities Act – “ADA”);

2. A sincerely held religious belief (Title VII of the Civil Rights Act of 1964 – Religion – “Title VII”); and/or

3. The employee is pregnant (COVID-19 vaccines have not yet been approved for pregnant women).  While Pregnancy alone generally is not considered a disabling condition (although an underlying medical complication may qualify as a disability), an employer cannot mandate an unapproved use of the vaccine. Therefore, employers should work with their pregnant employees to keep them safely working.

“Software programs providing dashboards and reporting will be a key component to a successful mandatory program most especially for larger employers”

If an employee falls into one of the first two categories, the employer should engage in the interactive process to determine if there is a reasonable accommodation that allows the employee to perform the essential functions of the job. The interactive process generally means that an employee will provide the employer with confidential and/or sensitive medical or personal information. Employers will have to keep track of employee accommodations and exceptions along with employee vaccinations. Software programs providing dashboards and reporting will be a key component to a successful mandatory program most especially for larger employers.

2. Motivate

Motivation programs generally consist of incentives designed to encourage (but not require) employees to receive the vaccine. As discussed in our vaccine eBook, employers should design incentive programs as part of an overall workforce health and safety program (avoid incorporating into the health insurance). Employers offering vaccine incentive programs will have a number of factors to consider such as:

• How the incentive is earned

• The incentive amount

• The method of payment

• Necessary documentation to substantiate the incentive

As employers build their incentive programs, they will require a method and a system to track and monitor these factors. Motivate programs are voluntary to the employee. While employers may ask employees to provide proof of vaccination, they should not seek supporting documentation to “opt out” of a voluntary program.

3. Educate

Employee vaccine education programs require the least amount of monitoring and data collection. In pure education programs, employers provide information and resources to employees and leave the vaccine decision to the employee. In some cases, employers may still seek employee proof of the vaccine. In that case, the employer will need a resource or mechanism to track and store the employees’ vaccine records.

Technology and Employer Vaccine Programs

There are at least four categories of vaccine program management solutions available to employers:

1. Vaccine Tracking Software

Vaccine management software has been available to healthcare providers and employers for many years. These programs offer employers an array of functionality generally including employee compliance status, medical surveillance, virus exposures, real-time injuries and illnesses tracking, and employee certifications. Vaccination medical management programs are designed to assist employers (and healthcare providers) with the administration of vaccinations (among other things). Oftentimes, these programs offer an interface with HR systems.

2. Risk Management Programs

Risk management software solutions have been available to employers for decades. Risk technology platforms generally provide claims/incident reporting/tracking, document/recordkeeping, mobile incident intake, certification management, disaster recovery management, and related dashboards/reporting. Many of these risk services platforms have expanded their offerings and added COVID-19 modules. The expanded capabilities enable employers to manage, monitor, and track employees’ vaccination status including booster dose. It also allows employers to record employees who are not able to receive or elect to opt-out of the vaccine. Likewise, many of these platforms offer outbreak tracking including alerts when employers reach certain thresholds.

3. Payroll/HRIS

While most payroll/HRIS systems are not designed to be employee medical management systems, many programs offer customizable features that may allow an employer to implement some basic tracking.  For example, the EEOC has cleared the way for employers to ask employees for proof of vaccination.  An employer may work with its payroll/HRIS provider to identify a feature of the software that it may customize to note an employee’s vaccination. While this approach may be financially attractive, it may not allow employers to report on their employee vaccination status, track those who cannot receive or opt out of the vaccine, and may not provide a convenient “at a glance” dashboard.

4. Manual Methods Such as Spreadsheets or “Home Grown” Databases

In many cases, an employer will not have significant or complex data to manage – either because they adopt a simplified vaccination program or have a smaller employee population. In those cases, employers may choose to track employee vaccinations through spreadsheets, or a database built through an existing software platform.

Confidential Medical Information

Employers implementing vaccination programs may receive confidential employee medical information. Employers must be sure that all employee medical information is secured retained separately from the personnel file, and only those who “need to know” have access to the information. Human resources must work closely with their technology team to ensure that system and record access is secured and trackable. Employees who do not have a “need to know” should not have access to the employee medical information stored in the software system. HR should be able to monitor access to the electronic employee medical documents.

One Size Does Not Fit All

The right solution for each employer will largely depend on at least three things including the:

1. Employer’s industry

2. Number of employees

3. Complexity of the employers’ vaccination program

There are a number of subject matter experts to assist employers with these decisions including their insurance brokers, technology SMEs, and industry associations.

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