It is no secret that the spike in COVID-19 infections from the Delta variant is negatively affecting our country. Neither homes, schools, nor workplaces have been exempted from the wrath of this virus. As a result, the federal and many state governments are now requiring COVID-19 vaccinations or weekly testing as a condition of employment. Private employers are grappling with similar decisions – weighing the need to keep workers in an almost bare labor market against the inherent duty to keep workers safe. OSHA suggests that employers adopt policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated. While some employers are not quite ready to fully mandate vaccinations, they are thinking creatively about ways to incentive employees to receive the vaccine.
As we previously reported, the EEOC has issued technical guidance confirming that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the Americans with Disabilities Act (“ADA”). The EEOC has also confirmed that an employer can require proof of vaccination; however, any proof provided must be kept separate and apart from any traditional personnel records.
Much of the EEOC’s guidance turns on whether the employer is the entity administering the vaccine as opposed to a third party in the community such as a pharmacy, personal health care provider, or public clinic. If the employer administers the vaccine to employees, there are additional restrictions on mandating the vaccines and providing incentives for employee vaccinations. For example, the EEOC’s guidance distinguishes the offering of incentives (which includes both rewards and penalties) based on whether the vaccine is administered by the employer or a third party. If the vaccine is administered by the employer, the EEOC requires that any incentive be not so “substantial” as to be coercive. The guidance is unclear as to the limits of its term “substantial.” This distinction is based on the EEOC’s belief 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. However, the limits to the amount of the incentives does not apply if the employer is providing such incentives to employees for receiving the vaccine from a third party and providing proof of vaccination.
Also, one topic on which the EEOC has been silent is whether employers have to offer incentives to those employees who are unvaccinated due to disability or religious reasons. In other words, if an employee is unvaccinated based on disability or religion, does the employer have to make an accommodation to allow the employee to receive the incentive offered to other employees? The risk is that an employee who is unable to receive a vaccine for a legally protected reason could claim he/she is being treated less favorably than those who are able to get the vaccine and related incentive. Without guidance from the EEOC, this area remains somewhat of a risk to employers offering such incentives; however, employers have the flexibility to consider making such accommodations on a case-by-case basis. For example, depending on the size and type of the incentive, employers could decide to allow an employee an alternative way to earn the incentive, such as participating in COVID-19 safety training.
Employers are considering and implementing various incentives/penalties to encourage employees to receive the vaccine. Such plans include requiring all new hires to be vaccinated; offering gift cards to vaccinated employees; entering vaccinated employees into a lottery for prizes; requiring unvaccinated employees to undergo routine COVID-19 testing and to pay a certain fee for the testing; prohibiting unvaccinated employees from using paid time off to cover absences due to COVID-19-related reasons; and adding vaccination status to the list of eligibility criteria for annual bonuses. There is no one plan that will work for all employers, and each employer will have different considerations in developing a plan, including employee morale; what your competition for employees is doing; risks unique to the specific workplace; need for accommodations; employee safety; and how best to communicate the policy to employees. Employers also must remember to consider other employment laws, such as Title VII, the ADA, FMLA, and the FLSA, in the development of these plans. Each law can be implicated in the various scenarios listed above. The pace of the spread of COVID-19 is keeping everyone on their toes, but we can help you keep up with practical and legally-sound policies.
Written By: Breanna Young
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