Vaccine Policy Considerations for Health Club Staff

The vaccine is excellent news for the industry, and emerging data continue to be more promising. There are some complicated issues around vaccination that club operators are going to face. Clubs need to consider the pros and cons of policies they will put in place around vaccinations for both staff and members and some legal issues that may impact these policy decisions. This article is the first in a series and addresses the question club operators need to ask and the issues they need to be aware of, to the extent we know them now, on vaccine policies for staff.

One of the biggest questions facing businesses open to the public is, will you encourage or require employees to get vaccinated? Employers are considering these options:

• Mandating the Vaccine
• Encouraging or Incentivizing the Vaccine
• Provide Education and Awareness about the Vaccine
  

Option 1: Mandating the Vaccine: Require vaccination of all employees as soon as doses are available

Legal Considerations

There are legal issues to be considered when mandating a vaccine. The Equal Employment Opportunity Commission (EEOC), the agency that enforces anti-discrimination laws issued guidance and FAQs that imply that employers can lawfully mandate employees receive COVID-19 vaccinations.

However, according to Karla Grossenbacher, chair of labor and employment practice at Seyfarth Shaw LLP, employers must follow relevant laws. Employers must also make reasonable disability and religious-based accommodations based on the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, says Grossenbacher in an interview for the Johns Hopkins Bloomberg School of Public Health podcast "Public Health on Call.”

For companies who are mandating the vaccine and requiring the employee to obtain it from them (or a third party they have contracted to provide it), an important issue is whether the vaccine comes under ADA regulations regarding medical exams and disability-related inquiries, or questions that elicit information about a disability. According to the guidance from the EEOC, providing the vaccine does not constitute a medical exam under ADA, but the screening questions may implicate ADA.

For operators choosing this route, the ADA does allow employers to mandate medical exams or make disability-related inquiries if they are job-related and considered a business necessity, a benchmark that Grossenbacher notes can be difficult to meet. According to guidance, employers must demonstrate that an unvaccinated individual poses a direct threat and that there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

For businesses that mandate vaccination from any provider, asking for proof of vaccination would not come under any of these ADA regulations as long as the employer does not ask further questions about why an employee has not been vaccinated.

Asking whether a person is vaccinated also does not invoke HIPAA, or the Health Information Portability and Accountability Act. HIPAA applies only to "covered entities" and "business associates.” Covered entities fall into three broad categories: health care providers, health plans, and health care clearinghouses. Most health clubs will not fall under one of these three categories, though it is possible that a club could be considered a "health care provider" if it provides certain wellness services. Business associates are entities that use or disclose protected health information on behalf of, or provide services to, covered entities. Health clubs would not be considered business associates in most situations, unless they share members' protected health information to a covered entity (for example a physician's office or a hospital system). Learn more about HIPAA in our article “Does Your Health Club Need to Comply with HIPAA?”

Employers should also check state and local guidelines before setting any compulsory vaccine policies.

Objections, Accommodations, & Liability

Companies that institute any vaccine mandates still need to contend with lawful objections, accommodations, and liability issues.

In addition to medical exemptions, the ADA allows an employee to object to vaccination requirements based on religious grounds. An employer would be required to make reasonable accommodations for sincerely held religious beliefs and practices, which EEOC says should be assumed to be sincerely held unless an employer has an "objective basis" to question the employee's sincerity. However, accommodation isn't reasonable "if it would pose an undue hardship.” Courts have relied on Title VII of the Civil Rights Act to define undue hardship as “having more than a de minimis cost or burden on the employer."

Businesses mandating vaccines are also open to legal claims by those who do not want the vaccine and will have to dedicate time and effort to processing exemption and accommodation requests. In addition, it is unclear whether employers who mandate the vaccine will need to compensate employees for side effects related to the vaccine, or if time taken to get vaccinated counts as work time and should be compensated.

The calculus for mandating vaccines may change when the vaccine has moved from Emergency Use Authorization (EUA) and has achieved full vaccine licensure. Efficacy against variant strains is also a concern with a mandate and is one reason employers are hesitant to institute a mandate. Some fear that if they mandate a vaccine that proves ineffective against a variant that later becomes dominant, they would have to consider mandating a second vaccine and going through the process again.

Is it Worth It?

The most important consideration is whether instituting a mandate will be any more effective at achieving a fully (or near fully) inoculated staff compared to incentivizing or encouraging the vaccine. An added consideration for clubs is that, more often than not, most of the people inside your club at any given time are members, rather than staff. While a fully vaccinated staff will demonstrate your commitment to COVID-19 safety, vaccination rates among members may ultimately be more important.

Option 2: Encourage employees through incentives

A second way to approach vaccine policy is to encourage—not mandate—employees to get vaccinated by offering cash, paid time off, or other incentives. The Centers for Disease Control and Prevention (CDC) has issued guidance recommending employers offer and/or encourage COVID-19 vaccines for employees and highlights benefits to including vaccinations as part of wellness programming.

A recent article by the Society of Human Resources Management (SHRM) illustrates how employers incentivize employees to get vaccinated. Instacart offers a $25 bonus and JBS USA a $100 stipend for employees who get the vaccine voluntarily. Others provide paid time off to get a vaccine and cope with side effects if necessary. For example, Chobani is offering its 22,000 employees a total of six hours paid time off—three hours per dose—to get the vaccine.

The EEOC’s newly proposed rule on wellness programs could have an impact on vaccine mandates and incentives. Because it is still in the proposal phase, EEOC has not clarified what that impact may be, if any. We are keeping an eye on the rule and will update this article if anything changes.

Option 3: Provide education and awareness about the vaccine

Club operators who don't want to wade into vaccine policies have a third option: providing education and awareness about the vaccine. In general, public sentiment is more for than it is against vaccines, with 65% of Americans reporting they are willing to take an FDA-approved vaccine now at no cost, according to Gallup.

It can be challenging to identify good, trustworthy sources of information on COVID-19 vaccines. This is where education could be a good option. Here some ideas to educate your employees—and perhaps members, too.

• Send information and updates to staff about the safety and efficacy of the COVID-19 vaccine;
• Provide regular and accurate updates and information about availability, eligibility, and where and how to make vaccine appointments;
• Post information around the facility about vaccine safety and access; and
• Make a public or internal statement about the vaccine.

Another way to encourage vaccine uptake is to lead the way by getting the vaccine yourself. Some people may be hesitant, but become more willing as they see others going to get their shots. Taking an active stance and providing education and resources on vaccinations can be a great way to align with the medical and health communities and show your health and fitness facility as a partner in improving population health and ending the COVID-19 pandemic.

Communicating Your Policies

Whether you decide to mandate, incentivize, or encourage vaccination, develop a clear, employee-facing written policy. Communicate your policy regularly and across multiple mediums with employees.

This article is not legal advice. If you need legal advice, you should consult an attorney.

Have a legal or policy question about vaccines? Email us at gr@ihrsa.org.

Additional Resources:

Fisher Phillips: The Widespread Availability Of COVID-19 Vaccines May Be Here Sooner Than You Think: A 10-Step Action Plan For Employers