From the beginning of the pandemic, the Equal Employment Opportunity Commission has paid particular attention to protecting the rights of employees who are at high risk of getting sick or who may have a medical or religious reason to modify an employer’s Covid-19 safety requirements.
On May 28, the EEOC issued new guidance for employers responding to the pandemic addressing requiring vaccinations and providing incentives for employees to receive vaccinations. Obviously, employers are working toward having a more fully vaccinated workforce because it ensures employees can return to in-office work safely, and it eases the precautions that employers must manage in the office.
The EEOC’s guidance considers a wide variety of federal laws, ranging from disability protections and genetic privacy to laws prohibiting discrimination on the basis of race, religion, and national origin. An employer may require vaccination while providing accommodations for religion and disability. An employer may also provide incentives and require proof of vaccination by a third party in order for employees to qualify for the incentives.
Accommodating Unvaccinated Employees
According to the EEOC, federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
In enacting such a policy, however, the employer must be sure to accommodate employees who may have a disability or sincerely held religious belief that would prevent them from being vaccinated. Such accommodations could include requiring unvaccinated employees to wear masks, practice social distancing in the workplace, or have the opportunity to work remotely.
While a company may require employees to be vaccinated, some employers may not feel comfortable instituting this kind of policy for a variety of reasons, including but not limited to morale issues, possible employee resignations, or fear of potential liability if the vaccines have a negative effect.
If that is the case for your company or your client, incentives for vaccination may be a better option that can still ensure that a large portion of your workforce is vaccinated. While there is a lack of legal guidance on proper incentive-based programs, many companies already have successfully started such programs.
For instance, McDonald’s is providing its employees up to four hours paid time off to get the vaccine, Kroger is offering employees a one-time $100 payment upon showing proof of vaccination, and some companies have offered employees as much as a $500 bonus for receiving the vaccine.
Some companies and states have instituted drawings for larger sums of money to incentivize employees to receive vaccinations. Drawings reduce the potential coercive nature of the incentive. These employers hope to see an increase in the number of employees getting their vaccines.
Before offering these types of incentives for your employees, though, it is important to understand the legal requirements and to only provide incentives that comply with the federal anti-discrimination laws. While the Americans with Disabilities Act generally prohibits employers from conducting medical examinations of their employees, under the new EEOC guidance, an employer can require an employee to provide documentation that they have received the vaccine in order to qualify for an incentive.
While there is no specified limit on the amount of the incentive, the EEOC also has advised that an incentive for vaccination should not be “so substantial as to be coercive” if the vaccine is administered by the employer or an agent of the employer, because this may pressure employees to disclose confidential medical information if they choose not to be vaccinated.
To avoid this issue, any employer that has medical providers and nurses and is providing incentives for vaccinations may want to avoid administering the vaccine themselves and only require that employees voluntarily provide proof of vaccination by a third party, such as the employee’s doctor or pharmacy, in order to receive the incentive.
In addition to offering vaccines to employees, employers may offer vaccines to family members of employees on a voluntary basis. In doing so, employers must be aware of the requirements of the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from asking medical questions about employees’ family members.
The EEOC has stated that an employer may not offer incentives for family members to receive vaccines that are provided by the employer, as it would require the disclosure of a family member’s medical information.
Incentives for vaccination may be a solution for employers who want to increase employee vaccination rates without requiring all employees to receive the vaccine. Incentives can include one-time cash payments, drawings, or paid time off to receive the vaccine (in states that do not mandate time off to receive the vaccine).
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jane H. Heidingsfelder is a partner in the Labor & Employment Practice group at Jones Walker LLP in New Orleans.
Jacob J. Pritt is an associate in the firm’s Labor & Employment Practice group.