As the COVID-19 outbreak evolves, Constangy has created this resource page for employers, to stay abreast of the latest guidance and provide answers to frequently asked questions. 

This resource center is made available for educational purposes only, to provide general information and not to provide specific legal advice or to establish an attorney-client relationship. Further, the issues related to COVID-19 are constantly evolving. There have been substantial changes in the governmental guidance and even in the underlying laws on almost a daily basis, which will affect the analysis of the legal issues related to COVID-19. As such, this resource center should not be used as a substitute for up-to-date legal advice from an attorney licensed in your state.

COVID Vaccination FAQs

PLEASE NOTE: The following FAQs are based on federal law. Be sure to check any requirements in the states in which you operate. 

VACCINE MANDATES (ADDED 12/3/21, UPDATED 12/10/21, 12/17/21, AND 1/24/22)  

Is my company required to mandate vaccinations for employees? 

Possibly. Some state and local governments require certain employers to mandate vaccination. On the other hand, some state laws prohibit vaccination mandates.  

Here is the status of the federal mandates as of January 24, 2022:  

Private sector employers of 100 or more employees might have been covered by an Emergency Temporary Standard that was issued on November 5 by the Occupational Safety and Health Administration. The ETS would have required covered employers to either require employees to be vaccinated (with limited exceptions), or to give employees the choice between being vaccinated or undergoing weekly testing for COVID-19. It also had requirements related to policy development, encouraging employees to be vaccinated, collecting and retaining proof of vaccination or negative COVID tests, and more. UPDATE (1/24/22): In a 6-3 decision issued January 13 (NFIB v. Department of Labor), the U.S. Supreme Court stayed the ETS until final resolution by the courts. As a result, the ETS is “on hold” indefinitely.

Federal contractors might have been covered by vaccination guidelines issued by the Safer Federal Workforce Task Force and Executive Order 14202, which was issued by President Biden on September 9. The contractor guidance required all “covered contract employees” to be “fully vaccinated” by January 18, 2022. The only employees allowed to opt out of vaccination were those who needed reasonable accommodations for medical conditions or religious beliefs. To be considered “fully vaccinated,” the employee would have had to have all required shots, followed by a two-week period after the last shot. That meant the deadline for employees to get their final shot was really January 4, 2022. (NOTE: As of December 7, the federal contractor guidance was preliminarily enjoined nationwide, which means that it did not take effect as scheduled and is still not in effect as of January 2022. As of the week of January 10, the government had appeals pending in the U.S. Courts of Appeal for the Fifth, Sixth, Eighth, and Eleventh Circuits.)  

Health care employers who receive Medicare or Medicaid funds may be covered by a vaccine mandate issued by the Centers for Medicare and Medicaid Services. (UPDATE (1/24/22): The CMS regulation is the only federal vaccine mandate currently in effect.) Like the federal contractor guidance, the CMS regulation does not give employees of covered employers the option to be unvaccinated unless they qualify for a medical or religious reasonable accommodation. 

NOTE:  As a result of two court decisions issued the week of November 29, the CMS mandate was preliminarily enjoined nationwide. However, part of the nationwide injunction was lifted by an appeals court on December 15, with the result being that the CMS mandate was enjoined in 25 states and arguably in effect in the other 25 states.  

On December 17, the government asked the U.S. Supreme Court to stay the injunctions pending appeal. UPDATE: In a decision issued January 13 (Biden v. Missouri), the Supreme Court upheld the CMS mandate and lifted the injunctions.  

Before the Supreme Court’s decision, the CMS mandate was enjoined in the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. 

The litigation before the Supreme Court did not include a case that involved Texas. As a result, the Supreme Court decision technically did not lift the injunction against the CMS rule in Texas. However, on January 19, 2022, the lawsuit was dismissed and the Texas injunction lifted at the request of the State of Texas. 

Applicable CMS compliance deadlines as of January 24, 2022: 

The CMS has set compliance deadlines that apply in the states where the injunctions were never in effect.  

The following compliance deadlines apply to covered employers in the states where the CMS rule was not enjoined: 

January 27: 

  1. Have received at least one dose of a COVID-19 vaccine 
  2. Have a pending request for a qualifying exemption 
  3. Have been granted a request for a qualifying exemption, or 
  4. Have identified as meriting a temporary delay as recommended by the Centers for Disease Control and Prevention. 

        All staff at covered facilities must be vaccinated, unless they fall within an exemption or are identified as meriting a temporary delay. If not, the employer will not be considered compliant with the rule. However, enforcement action will not be taken if a facility is more than 80 percent compliant and has a plan to achieve 100 percent compliance within 60 days. 

        February 28: 

        All staff must be vaccinated, unless exempted or identified as meriting a temporary delay. Otherwise, the facility will not be considered compliant. A non-compliant facility will not be subject to enforcement action if it is 90 percent compliant and has a plan to achieve 100 percent compliance within 30 days.  

        March 28:  

        Deadline for full compliance. 

        The CMS has also issued compliance deadlines that apply in the 25 states where the CMS regulation was enjoined before the Supreme Court issued its decision. (NOTE that Texas has a different deadline because its litigation was not before the Supreme Court.)  

        States where the mandate was enjoined (excluding Texas): The deadlines for the 24 states where the CMS mandate was enjoined until the Supreme Court lifted the injunction are February 14 (Phase 1), March 15 (Phase 2), and April 14 (Phase 3).  

        Texas: The compliance deadlines for Texas are February 22 (Phase 1), March 21 (Phase 2), and April 20 (Phase 3). 

        All of the federal vaccine mandates allow exceptions to be made as reasonable accommodations for medical conditions or religious beliefs. Reasonable accommodation is discussed in more detail below.   

        Employers who are not covered by a federal vaccine mandate (or were covered by a federal mandate that has been stayed by the courts) should check applicable state and local law before deciding how to proceed. Some states have imposed their own vaccine mandates, and other states -- most notably, Florida and Texas -- have enacted legislation outlawing  most employer vaccine mandates. However, in most jurisdictions, employers who are not covered by a federal vaccine mandate are free to impose a strict vaccine mandate (with exceptions only for reasonable accommodation), a “soft” mandate that allows employees to opt out for any reason with regular testing and other precautions, or no mandate at all.   

        My company is covered by one of the federal vaccine mandates, but we have operations in a state that has outlawed vaccine mandates. What should we do? 

        As long as the applicable federal mandate is stayed or enjoined by a court, then you would have to comply with the law in your state unless or until the courts issue a ruling upholding the federal mandate. If the applicable federal mandate is not stayed or enjoined, it would presumably take precedence over state law. 

        UPDATE (1/24/22): The Supreme Court has stayed the OSHA ETS until further notice, so employers who would have been covered by the ETS can comply with applicable state or local law or -- if no applicable state or local law -- can proceed in accordance with their own preferences regarding vaccine mandates. The federal contractor mandate is enjoined nationwide, but appeals are pending. Employers covered by the CMS regulation, which has been upheld by the Supreme Court, will have to do their best to comply with the CMS regulation and applicable state or local law. To the extent that the CMS regulation conflicts with state or local law, covered employers should consult with qualified employment counsel about how to proceed, but we believe the CMS regulation would take priority. 

        My company is covered by one of the federal mandates that was put on hold by the courts. Should we be doing anything while we wait for a final decision? 

        Yes. The best course seems to be to do everything you can to be ready, but without “going live.” For example, if you are covered by the OSHA ETS, you’ll need to decide whether you prefer to issue a “strict” mandate (vaccines required for everyone except in cases of medical or religious accommodation) or a “soft” mandate (employees can opt out of vaccination for any reason but must be tested weekly). Once you have made that decision, go ahead and prepare a vaccination policy, begin collecting proof of vaccination from your vaccinated employees, and develop your “pro-vaccination” materials for employees. If you have decided to have a “strict” mandate, set and communicate a deadline for the unvaccinated employees to be vaccinated. Determine what action you will take with any unvaccinated employees who do not meet the deadline.  

        If you have decided on a “soft” mandate, estimate the number of employees you believe will remain unvaccinated and begin shopping for a vendor who can conduct the weekly testing and, perhaps, handle your weekly testing recordkeeping obligations. But don’t sign any contracts until you know that the mandate will be taking effect. And, for employee relations reasons, wait for a court decision before telling your unvaccinated employees that they will have to be tested for COVID on a weekly basis -- unless you planned to require that regardless of any federal mandate.  
        UPDATE (12/20/21): The stay on the OSHA ETS was lifted in a court order issued Friday night, December 17. OSHA has announced that it will enforce the weekly testing requirement (for employers who offer that option) starting February 9. All other ETS requirements will be enforced starting January 10. Meanwhile, opponents of the ETS are requesting Supreme Court review. 

        UPDATE (1/24/22): On January 13, the U.S. Supreme Court stayed the OSHA ETS pending a final decision. Because the first deadline under the ETS was January 10, many employers who would have been covered had already developed policies, gathered vaccination information from employees, and taken other steps short of imposing the weekly testing requirement (which would not have gone into effect until February 9). Because the Supreme Court stay is in effect only until a “final” decision is rendered, employers should keep whatever materials they created or records they obtained in case the ETS is eventually upheld (this is unlikely, but it is possible). It is probably not necessary for employers to undertake any new preparatory measures until the ETS is upheld, if ever. 


        Can employers exercise any influence over employees’ decisions to be vaccinated without violating the federal anti-discrimination laws?   

        Yes, they can. They can exhort employees to be vaccinated, they can provide vaccination incentives in the form of cash, prizes, or perks, and they can even require employees to be vaccinated as a condition of employment. UPDATE: Please note that a number of state and local governments require employers to impose vaccination mandates. On the other hand, a number of states have prohibited vaccine mandates. Employers in these jurisdictions will have to comply with applicable state or local law. In addition, health care employers covered by the federal CMS mandate will have to comply with that. 

        So, it is lawful for an employer to require employees to be vaccinated for COVID-19?   

        Yes, it is, provided that the employer attempts to make reasonable accommodations for employees who cannot be vaccinated because of (1) a medical condition protected by the Americans with Disabilities Act, (2) a sincerely held religious belief, practice, or observance, and (3) pregnancy, maybe. (Our recommendation would be pregnancy, definitely.) 

        UPDATE (1/24/22): Please note that a number of states prohibit employer vaccine mandates. Employers in these jurisdictions will have to comply with applicable law.   

        What if an employee objects to being vaccinated for some reason other than disability, religion, or pregnancy?   

        NEW (1/24/22): For the most part, the employer has the discretion whether to excuse employees from being vaccinated for reasons that do not qualify for reasonable accommodation. On January 13, the U.S. Supreme Court stayed the OSHA ETS, which had an option for employers to allow employees to remain unvaccinated for any reason as long as they agreed to weekly COVID testing and to wear face coverings. Now that the ETS is not in effect, it would be up to the employer (subject to applicable state or local laws) to decide whether to let employees opt out of vaccination for reasons unrelated to disability, pregnancy, or religion, as well as whether to require testing for unvaccinated employees.  

        The vaccine mandate that applies to federal contractors is currently on hold nationwide, but appeals are pending in four federal circuits. Under the federal contractor mandate, there was no option other than vaccination for covered employees who did not qualify for a medical or religious accommodation.  

        The CMS mandate that applies to certain health care employers who receive Medicare and Medicaid funds, so the CMS mandate is in effect. The mandate had been enjoined in 25 states, and in litigation involving 24 of the states, the U.S. Supreme Court lifted the injunctions. (In a Texas case, which was not part of the Supreme Court litigation, the injunction was lifted by a federal court in Texas at the request of the State of Texas after the Supreme Court decision was issued.) The CMS mandate does not allow covered individuals to remain unvaccinated for reasons that do not qualify for medical or religious reasonable accommodation. 

        In addition to all of the above, employers must comply with applicable state or local laws. Some state and local laws require employers to mandate vaccination. A number of state laws prohibit vaccination mandates. 

        Is it lawful for an employer to encourage vaccination by providing incentives to employees who are vaccinated (or penalties for those who are not)?   

        Generally, yes, although there are a few qualifications that we’ll discuss below.   

        And is it lawful for an employer to request or require proof of vaccination?   

        Yes. A vaccination card, a doctor’s note, or a receipt or other documentation from a pharmacy or health department should be fine. However, the employer should not ask for or accept any documentation that would reveal, for example, the employee’s answers to medical history questions asked before the vaccine is administered. That would violate the Americans with Disabilities Act. 

        NEW (1/24/22): Health care employers who are covered by the CMS regulations are required to obtain proof of vaccination. The OSHA ETS and the federal contractor mandate, both of which would have required employers to obtain proof of vaccination, are not in effect at this time.  


        What should the employer do if an employee asks to be excused from the vaccine requirement because of a disability, religion, or pregnancy? 

        First, this should be treated as a request for reasonable accommodation, even if the employee fails to use the words “reasonable accommodation.” The request should be referred to the appropriate member of management, which would often be someone in Human Resources. The designee should engage in an “interactive process” with the employee, which would include discussing ways that the employee could continue safely performing his or her job without being vaccinated. In the case of a disability or pregnancy accommodation, it might be necessary to confirm the employee’s condition and consult about possible accommodations with the employee’s health care provider. The designee should then discuss the accommodation ideas with the employee’s supervisor and any other appropriate members of management, and then make a decision.  

        Can you provide some examples of reasonable accommodations for an employee who cannot be vaccinated? 

        Some examples provided by the EEOC include requiring the unvaccinated employee to wear a mask, to observe social distancing, “work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.”  

        Does the EEOC have any recommended “best practices” related to reasonable accommodation? 

        Yes, the EEOC recommends that employers include in their vaccination policies a statement “that the employer will consider requests for reasonable accommodation [based on disability or religion] on an individualized basis.” We would recommend including pregnancy in addition to disability and religion, and adding to this statement the contact information for the individuals to whom reasonable accommodation requests should be directed.  

        The EEOC also recommends that employers ensure that managers, supervisors, and others “responsible for implementing the policy” have clear instructions on “how to handle accommodation requests related to the policy.”   

        Can we ever terminate an employee who cannot be vaccinated because of a disability? 

        The quick answer is “rarely, if ever.” The guidance says that the unvaccinated employee would have to be a “direct threat” to his or her own health or safety, or to the health and safety of others. This is a very demanding standard that requires a “significant risk of substantial harm.” In assessing the risk, the employers must consider, with respect to the individual employee, “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” In the case of an unvaccinated employee, a “direct threat” determination “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including community spread, statements from the Centers for Disease Control and Prevention, and information from the employee’s health care provider. The employee’s work environment must also be taken into account, including -- among other things -- whether the employee can work from home, and the number of co-workers who have been vaccinated.  

        Even if the employer determines that the unvaccinated employee is a “direct threat,” the employer must still consider whether reasonable accommodation would reduce or eliminate that threat. Termination would be an option only if (1) the employee were determined to be a direct threat, based on all the factors discussed above, and (2) there was no accommodation possible that would not be an undue hardship for the employer.  

        Do we have to make reasonable accommodations for a vaccinated  employee who still has concerns about COVID related to a disability? 

        You might, so you should treat any such requests the same way you would treat any other request for a disability-related reasonable accommodation.  

        How about accommodating religious objections to the vaccine? 

        The EEOC has some helpful guidance here, too. First, start with a rebuttable presumption that the employee’s belief is sincere. Second, in determining whether reasonable accommodation is possible, follow the same general guidelines described above. Third, the “undue hardship” standard for religious accommodation is easier for employers than the “undue hardship” standard under the ADA. However, with telework possible for many jobs and a presumably large number of vaccinated co-workers, “undue hardship” may be difficult to prove in the religious context, too.  

        How about pregnancy? 

        The Pregnancy Discrimination Act does not actually require pregnancy accommodation. However, it does prohibit discrimination  because of pregnancy or related conditions. Thus, although an employer theoretically is not required to make reasonable accommodations for pregnancy under federal law, it may not treat pregnant women less favorably than similarly situated co-workers. And here is where it gets sticky: Because employers have to accommodate employees whose disabilities or religious beliefs preclude them from being vaccinated, arguably it would be “discrimination” against pregnant employees to not accommodate them as well.  

        And this is why we say that employers should just go ahead and make reasonable accommodations for employees who do not want to be vaccinated while they are pregnant (or nursing). 


        Can an employer administer COVID-19 vaccinations on site and by its own medical team? 

        Yes, but the EEOC seems to want to discourage mandatory  vaccinations by the employer or its agent.  

        Can an employer hire a health care provider to come on site and administer COVID-19 vaccinations to employees? 

        Yes. According to the guidance, anyone hired by the employer to provide COVID vaccinations is an “agent of the employer.” In other words, the health care provider would be acting on behalf of, or at the direction of, the employer.   

        Why doesn’t the EEOC seem to want employers to require employees to be vaccinated by the employers or their agents? 

        The vaccination itself is no problem. The problem, under the ADA, is the medical questionnaire that is given before the vaccine can be administered. Those questions “are likely to elicit information about a disability,” and therefore must be “job-related and consistent with business necessity.” According to the EEOC, to meet this standard, the employer would have to prove both (1) that the vaccine could not be administered to an employee who refused to answer the questions, and (2) that the unvaccinated employee would be a “direct threat” to his or her own health and safety, or to the health and safety of others. (See discussion about “direct threat” above. It is a very difficult standard to meet.)  

        The EEOC warns that employers who require employees to be vaccinated by themselves or their agents may face legal challenges: “[W]hen an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre-vaccination inquiries, and an employer would have to justify them under the ADA.” (Emphasis added.)  

        If the employer requires employees to be vaccinated by the employer or its agent, does that violate the GINA? 

        No. None of the current pre-vaccination questionnaires related to the Pfizer, Moderna, and Johnson & Johnson vaccines request “genetic information.” (Under the GINA, family members’ medical information is “genetic information” of the employee.) The questions all relate to the employee, not to the employee’s family members. Administration of the vaccine also does not implicate the GINA.  

        What if the employer provides vaccinations on site only as a convenience to employees but also allows employees to be vaccinated elsewhere if they prefer? 

        That’s better. If employees aren’t required to get the vaccination from the employer or its agent, then the answers to the questionnaire will be considered “voluntary.” The only caution for employers in this instance is that they avoid pressuring employees in any way to have the vaccinations done by the employer or its agent.  


        Is it easier if the employer lets employees be vaccinated by third parties -- the employee’s health care provider, a pharmacy, or a health department? 

        Yes. Using third parties will shield the employer from any confidential medical information about the employee, and mere proof of vaccination is not considered a “medical inquiry” for ADA purposes.  

        If the employer allows employees to be vaccinated by third parties who perform medical screening, does that violate the GINA? 

        No. Because the only information the employer gets is proof of the vaccination, there is no GINA issue at all.  


        Can an employer offer incentives to encourage vaccinations (as opposed to requiring vaccinations)? 

        Yes. But the rules will be different depending on (1) whether the vaccinations are administered by third parties, (2) whether the vaccinations are administered by the employer or its agent, (3) whether the incentive is for the vaccination of the employee, and (4) whether the incentive is for the vaccination of the employee’s family member.  

        What’s the rule if the vaccinations are administered by third parties? 

        The rule is that there is no rule. The employer can offer incentives for employee vaccinations and vaccinations of employees’ family members without limit.  

        What’s the rule if the vaccinations are administered by the employer or its agent? 

        In this case, the incentives for employee vaccinations are fine as long as they are “not so substantial as to be coercive.” The EEOC fears that, “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”  

        Incentives for vaccinations of family members would violate the GINA because medical questions to the family member would reveal the employee’s “genetic information.”  

        However, the employer or its agent can lawfully provide COVID vaccines to employees’ family members as long as they do not offer incentives for family member vaccinations.  

        These rules apply even if the employee or family member has the option of going to a third party for vaccination.  


        What are the rules regarding confidentiality? 

        Any information obtained in the vaccination process -- proof of vaccination, pre-vaccination medical questionnaire answers, requests for reasonable accommodation -- must be treated as confidential. Any documentation should be placed in the employee’s confidential medical file, not the personnel file. Members of management should not discuss the medical details of an employee (or an employee’s family member) with others except on a strict need-to-know basis. Employers also should not disclose to co-workers that a particular employee is getting a reasonable accommodation.  

        Other COVID Vaccine Resources

        Other COVID Vaccine Resources

        View the latest content about the COVID-19 vaccine. 

        COVID Vaccine Policies 

        Mandatory Policy Regarding COVID-19 & Flu Vaccination

        This  immunization policy was created for companies who are mandating all staff to take the COVID-19 and flu vaccines. The scope of the policy covers temporary workers, trainees, and contractors working for a company regardless of where the staff are working or otherwise providing services.

        This policy has been established such that all individuals subject to it must present acceptable documentation of vaccination for seasonal influenza and COVID-19. The policy also provides medical and religious exemptions.

        Non-Mandatory Policy Regarding COVID-19 Vaccination

        The Non-mandatory Policy was created to safeguard the health and well-being of employees and their families, customers and visitors, others who spend time at a company's facilities, and the community from infectious conditions that may be mitigated through an effective vaccination program. This policy is intended to comply with all applicable laws and is based on guidance from the Centers for Disease Control and Prevention and local health authorities, as applicable.

        The policy applies to all employees, including full-time, part-time, and seasonal employees. It does not apply to independent contractors, customers, vendors, or visitors. The policy applies to FDA-approved vaccinations for the COVID-19 virus.

        This policy only governs individuals within a company's facilities and does not apply to clients’ worksites or facilities.

        For more information about obtaining these policy templates, contact Jon Yarbrough, Ashlee Ligarde or any Constangy attorney. 

        Other Resources 

        National Governors Association Summary: What Steps Have States Taken To Address Coronavirus

        DOL Fact Sheet Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues

        Occupational Safety and Health Administration COVID-19 Portal

        Centers for Disease Control and Prevention COVID-19 Portal

        U.S. Department of Labor Coronavirus Resources

        Task Force of Attorneys 

        Lawyers across Constangy are prepared to assist clients in this constantly changing landscape.

        Feel free to call any of the lawyers below or any other Constangy lawyer of your choice: 

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