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COVID-19 Vaccine Toolkit

Employer Best Practices and Policies

January 13, 2021 3546

Quick Summary:

Understand best practices regarding employee vaccination, including vaccine policies, employer mandates and employee vaccine reactions.  

For dentists who are also employers, there are considerations and best practices regarding employee vaccination, including vaccine policies, employer mandates and employee vaccine reactions. Find answers to common questions here.

If all of my employees are vaccinated, do I still have to implement the extra COVID-19 precautions (i.e., N95/face shield/HEPA filters/staggered lunch breaks)?

Yes. Even with vaccinated employees, or patients, existing COVID-19 prevention precautions remain necessary until further notice. Cal/OSHA requirements remain in place regardless of the vaccine.

How can I encourage my staff to become vaccinated for COVID-19?

There are multiple resources available, but the CDC does offer a tipsheet to help bolster vaccine confidence - How to Build Healthcare Personnel Confidence in COVID-19 Vaccines.

Should I make the vaccine mandatory for my employees?

Employers in health care settings have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity. However, CDA recommends as a best practice that employers encourage, but not require, employees to receive the COVID-19 vaccine.

Policies mandating vaccinations are more likely to be appropriate for employers in the health care industry. But legal risk and complications, including the potential for side effects from the COVID-19 vaccine, and the need to consider medical and sincerely held religious objections can make encouraging and facilitating an employee vaccination a better option for businesses than requiring it.

Even if an employer’s vaccination policy is mandated to meet county requirements or qualifies as a legitimate health and safety requirement for the business, under certain circumstances, some employees may nonetheless be exempt from complying.

If employers feel strongly about requiring employees to be vaccinated, CDA Practice Support recommends speaking with an employment law attorney before implementing a mandatory policy.

What circumstances would allow for an employee exemption from vaccination?

Employees may be exempt from compliance with a mandatory vaccination policy if they have a sincerely held religious objection or a qualifying disability under the federal Americans with Disabilities Act (ADA) or California Fair Employment and Housing Act (FEHA) that prevents them from safely receiving the vaccine. Specific to the Pfizer and Moderna COVID-19 vaccines, this includes factors such as whether the employee is pregnant, nursing, is allergic to ingredients of the vaccine, or has a compromised immune system.

Upon receiving a request to be excluded from a vaccination requirement as an accommodation, whether due to disability or religious-related reasons, an employer must engage in an interactive process with the objecting employee to determine if they can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer.

Do I need to pay my employees for their time and costs associated with receiving the COVID-19 vaccine?

As of April 1, employers of 25 or more employees must comply with California Supplemental COVID-19 Paid Sick Leave which mandates that employees who are unable to work or telework in order to obtain a COVID-19 vaccine, or who are recovering from complications of the vaccine be paid up to a maximum of 80-hours (or equivalent to their normal two-week work schedule). Employers cannot require an employee to use other paid or unpaid leaves before using COVID-19 supplemental paid sick leave.

SB 95 took effect March 29 but applies retroactively to Jan. 1, 2021. This means employers are required to make retroactive payments for leave taken for any of the qualifying reasons between Jan. 1 and March 28 upon oral or written request of the employee. For more information visit dir.ca.gov.

Employers with fewer than 25 employees who have voluntary policies do not require an employer to pay employee costs associated with the vaccine or time obtaining the vaccine. Most health insurers are covering the cost of the vaccine. However, employers who encourage employees to obtain the vaccine may consider reimbursement of costs (when applicable) and compensation of time to obtain it in order to remove any barriers for employees who may be reluctant to receive the vaccine. If you require employees to obtain the vaccine, then you are required to compensate your employees for their time and costs not covered by their health insurance associated with obtaining the vaccine.

What is an employer’s legal exposure if an employee refuses to be vaccinated?

Currently, there is no law that requires employers to vaccinate all employees with the COVID-19 vaccine. It is still too early to fully provide a legal liability response. Theoretically, it may be possible that, in the future, failure to provide or offer the vaccine to employees could be a workplace safety violation – but this is purely speculation. There is still much to be known. And, some states are introducing bills to prohibit mandating vaccinations. If passed, that will change the liability exposure for employers.

At this time, we are recommending that employers strongly encourage employees to obtain the COVID vaccine. Employers who decide to mandate the vaccine for all employees must consider reasonable accommodations for any employee requests not to be vaccinated due to a disability, medical contraindications or sincerely held religious beliefs.

It is possible that an employer may never have 100% of their employees vaccinated. Having a fully vaccinated staff does not completely reduce an employer’s liability or obligations to maintain workplace safety standards.

Can I have my employee, who refuses the vaccine, sign a waiver to release my liability if that employee transmits COVID-19 to a patient or another employee?

A waiver signed by an employee who refuses the vaccine may not provide an employer with liability protection from patients or other employees. Continue to follow standard COVID-19 prevention precautions regardless of employee vaccinations until further notice.

I’ve heard many people feel sick for several days after receiving the vaccine. Will my employees need sick time off following the vaccine? Do I pay them for the time off? Do they qualify for the COVID-19 FFCRA paid time off?

First, CDA recommends staggering the distribution of the vaccine among the dental team in the event that team members experience adverse reactions within the same window of time. Consider asking your front office team to stagger the days in which they receive the vaccine and the same for your back office team. This will help the practice maintain staff coverage. Employees who request time off due to the vaccine side effects may request to use any available employer provided paid sick leave or vacation time, if approved by the employer.

Any reactions to the COVID-19 vaccine must be reported to the employee’s medical care provider, or to local public health department if the individual does not have a medical care provider.

In the event that an employee experiences long-term health effects and requires a leave of absence, as of April 1, California employers have two Supplemental COVID-19 paid sick leave laws to consider depending on the number of employees in the practice.

The American Rescue Plan Act (ARPA), does not require employers to provide paid and emergency family leave under the Families First Coronavirus Response Act; however, it does extend tax credits for employers who continue to voluntarily offer FFCRA leave. The ARPA resets the allotted amount of emergency paid sick leave an employee has, meaning employees who previously exhausted their leave prior April 1 are now entitled to an additional 80 hours of EPSL. The Act further expanded the qualifying reasons to include coverage for time when an employee obtains a vaccine and time the employee may need recovering from complications due to receiving the vaccine.

If an employer chooses to voluntarily offer leave, it must be used for the same purposes and subject to the same conditions as originally outlined in FFCRA and must be provided fairly to all employees.

Effective, April 1, California recently expanded Supplemental COVID-19 Paid Sick Leave (SB 95). Under SB 95’s new provisions, California employers of 26 or more employees are required to provide COVID-19 supplemental paid sick leave. All employees working for covered employers are eligible to take paid sick leave if they are attending an appointment to receive a COVID-19 vaccine or are experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework. Employers cannot require an employee to use other paid or unpaid leaves before using COVID-19 supplemental paid sick leave.

If an employer has already provided supplemental paid leave after Jan. 1 to an employee for any of the qualifying reasons and if the amount of leave is equal to or greater than the required amount, the employer is allowed to count those hours toward the new leave requirements.

Additionally, if an employee has exhausted their SPSL under SB 95 and requires additional covered leave for a qualifying reason after April 1, covered employers may choose to voluntarily provide leave under the new ARPA revisions as noted above and receive payroll tax credits.

Both ARPA and California’s COVID-19 supplemental paid sick leave under SB 95 expire Sept. 30.

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