By Kevin Cleveland
Now that the vaccine is being rolled out across the country and distribution is well under way here in CA, we have been asked whether employers can require or incentivize employees to get a COVID-19 vaccination. Normally the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) prohibit employers from coercing employees to participate in wellness activities and generally prohibit medical exams. However, COVID-19 has led to a suspension of some of those requirements resulting in a lot of unknowns for employers. This article briefly reviews the current thinking regarding employers’ ability to mandate or incentivize employees to get the COVID-19 vaccine.
Employer Mandated Vaccinations
For example, during the pandemic, employers have been encouraged to take employee temperatures and ask questions regarding medical symptoms. Such tests and questions were strictly forbidden as recently as a year ago but exceptions to enforcement have been made in order to control the spread of COVID-19. Similarly, the Equal Employment Opportunity Commission (EEOC) provided guidance in December stating that employers can mandate that employees be vaccinated before returning to work without running afoul of the ADA or other laws which the EEOC enforces because unvaccinated employees returning to a worksite will pose a “direct threat” to other employees, customers, or the general public.
Specifically, the EEOC guidance states:
Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely.
In other words, there is a calculus which must be done if a company will mandate vaccinations. The more likely it is that nonvaccinated employees put customers, fellow employees or the general public at risk, the more compelling the case will be for a vaccination mandate. However, this does not provide employers the right to ask screening questions necessary to make sure it is safe for an employee to receive a vaccine since requiring such information could violate the ADA or the GINA. Also, though accommodations may be required relating to medical conditions or sincerely held religious beliefs, there is no need to accommodate persons who simply do not want the vaccine or do not believe it to be effective or necessary.
Be aware that if an employer fails to mandate vaccination in certain circumstances where there is a high risk of exposure, employees may allege that the employer has failed to provide a safe and healthy work environment, which is required by Cal/OSHA. However, it seems unlikely that such an argument would succeed unless and until a government entity at the federal, state, or local level mandates vaccinations. Currently, with significant government regulations regarding what employers have to do to keep employees safe from COVID, it is unlikely that an employer who is following those standards would be found liable for not keeping employees safe enough.
One thing which may help guide employers trying to decide whether or not to require the vaccine is to review how their workforce responded to prior health and safety protocols being implemented. For example, if a large segment of your workforce resisted wearing a mask, social distancing guidelines, or other protocols that your company tried to implement, that is a good indicator that they will resist a mandatory vaccine policy. If that is the case, then there is a greater risk to your company in implementing a mandatory policy than if you have had no such resistance.
There are also logistical issues with implementing a mandatory vaccine policy. For example, small businesses may have just one or two HR people who on top of their regular duties will have to create the policy, send notices regarding the policy, make sure the policy is implemented, and step through the interactive process with employees who need accommodations. They will also have to worry about employee reimbursement for any costs associated with getting the vaccine, potential liability under worker’s compensation if employees have a bad reaction to the vaccine or get in an accident on the way to get the vaccine. Alternatively, if someone comes to provide vaccines on site, there will be the logistical issues associated with setting that process up to run smoothly. Lastly, if the workplace is unionized, a mandatory vaccine policy will need to be bargained for with the Union.
For those reasons, the best move may be to educate employees that the vaccine is safe, backed by science, and getting the vaccine will help keep everyone in the workplace and at home safe. Also, allowing more flexible scheduling so that employees get the vaccine will help ensure that employees will get the vaccine when they are eligible.
Employer Incentives For Employee Vaccinations
A collective of 42 business groups recently asked the EEOC, on February 1, to clarify “the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act [ADA] and other laws enforced by the EEOC.” No response has been provided to that question yet. Complicating things further, the EEOC issued a guidance, indicating that wellness activity incentives of minimal value, such as small gift cards, water bottles, and other similar gifts can be provided, but that guidance has since been withdrawn.
Employers who are considering providing incentives also need to be aware of the following additional legal risks:
1. Incentives could be considered discriminatory if not implemented properly. Such incentives could have the effect of only being provided to people who are ready and able to receive the vaccine but not anyone with a medical condition or sincerely held religious belief which prevents them from getting the vaccine.
2. Providing cash or incentives worth a determinable value has tax implications for the recipient and may constitute a non-discretionary bonus which needs to be included as employee wages which will affect overtime and other pay based on an employee’s regular rate of pay.
3. Employers may be opening themselves up to potential liability for worker’s compensation claims if employees have a bad reaction to the vaccine or if they are in an accident on the way to get the vaccine, since an employee could argue that they got the vaccine at the instruction of the employer and for the employer’s benefit.
Nonetheless, there are companies who are offering incentives such as PTO or cash to get vaccinated. However, incentivizing employee vaccination may be a violation of the ADA and GINA, and as a result, providing such incentives creates potential risk for employers. If you are planning to offer or incentivize the vaccine for your employees, then proceed with caution due to the uncertainty in the current regulatory scheme. Make sure to avoid collecting personal health information when providing the incentives to minimize the chance of an ADA or GINA violation. Also, instead of cash, consider offering nonmonetary incentives of modest value could help avoid wage and hour issues.
Employers who decide not to offer or incentivize employees to get vaccinated can still share information from the CDC regarding COVID prevention, information from regulatory agencies regarding the safety of the vaccine, raise awareness of how and where to get vaccinated, and provide other related information to their employees that will hopefully increase the odds that they get vaccinated on their own.
We will send additional updates as federal and state agencies provide greater clarity for employers on what they can and cannot do with regard to vaccinations.