September 2, 2021
The impact of COVID-19 on employers is evolving. Employers are challenged with how to provide a safe workplace for employees and customers. Some employers are exploring mandates or providing incentives to employees for obtaining a COVID-19 vaccine. For those employers exploring these options, many implications need to be considered.
May an employer offer financial or other incentives for employees who receive COVID-19 vaccine?
Yes, but the following must be considered:
- Incentives must comply with federal anti-discrimination law, as outlined in recent Equal Employment Opportunity Commission (EEOC) guidance, as well as HIPAA wellness regulations, including maximum incentives.
- Creating premium contribution differentials based on vaccination status should consider IRS section 125 rules. An employer may wish to adopt such changes at open enrollment rather than an off-cycle change to its health and welfare plan.
- Although the Americans with Disability Act (ADA) generally prohibits employers from conducting medical examinations on their employees, EEOC guidance allows requiring an employee to provide documentation they received the vaccine. Employers should be thoughtful of what information is requested from employees for proof of vaccination. To avoid this issue employers could only require employees provide proof of vaccination.
- Pre-screening questions asked by the employer or contractor administering the vaccine “may” implicate the ADA’s provision prohibiting disability-related inquiries if they are “likely” to elicit information about a disability.
- EEOC guidance does not address whether employees with religious or medical objections to the COVID-19 vaccine have the option to receive the incentive as well. If following historic guidelines an employer should consider offering religious or medical exception accommodations.
- The standard for a medical/disability exemption is the same as under the Health Insurance Portability and Accountability Act (HIPAA) wellness regulations. If the employee provides a note from a doctor, that is sufficient. The employer must accept the doctor’s opinion. Also, an employer would be hard pressed to deny a religious exemption. If an employee attests under penalties of perjury that the vaccine violated their deeply held religious beliefs, no further analysis is likely required.
- The EEOC states “incentives for vaccine should not be “so substantial as to be coercive”. How this rule applies to a requirement that an employee provide proof of vaccination is not entirely clear, but things like monetary rewards, premium discounts and other similar incentives should be offered through a HIPAA compliant wellness program. The language prohibiting incentives from being “so substantial as to be coercive” applies only to vaccinations administered by an employer or an employer’s agent. The limitation specifically does not apply if the employer offers an incentive to employees who voluntarily provide documentation/confirmation of a vaccination received from a third-party provider.
- Any documentation of vaccinated status or reasonable accommodations related to disability or health status need to be maintained in a medical file separate from the employee’s personnel file. The privacy of that separate file needs to be maintained the same as it would be required to be maintained under HIPAA.
- Employers may not offer incentives for vaccines to family members of employees. To offer voluntarily – be aware of Genetic Information Nondiscrimination Act (GINA) which prohibits employers from asking medical questions about employees’ family members.
May an employer use a surcharge for employees who do not receive COVID-19 vaccine?
While final guidance has not been provided, it is likely that current wellness regulations will apply and therefore a surcharge is considered a dis-incentive or penalty. Until final guidance is provided, we would recommend that any incentive be applied during open enrollment at the start of a new plan year.
Can employers mandate the COVID-19 vaccine in the workplace?
The EEOC has provided guidance on workplace vaccination questions. An employer must determine why they require that their employees be vaccinated and determine whether there are employees who cannot be vaccinated due to valid religious or disability-related concerns. Employers must also ensure there is a clear accommodation request process and document all communications between it and the exempted employees in that regard. These accommodations should also be provided consistent with the HIPAA wellness regulations.
According to the EEOC, federal laws do not prevent an employer from requiring all employees to be vaccinated for COVID-19 before entering the workplace. However, the mandate must have reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964 (Title VII), ADA and HIPAA wellness regulations.
Some larger employers have issued vaccine mandates to either all employees, or those who wish to return to the office since the Food & Drug Administration (FDA)’s full approval of Pfizer’s COVID-19 vaccine.
Why are companies issuing vaccine mandates now?
Many individuals were hesitant to receive the vaccine since a complete safety and efficacy assessment from FDA was not yet complete and fear of adverse side effects. This left employers hesitant to mandate the vaccine without the backing of a completed regulatory review.
The FDA’s stamp of approval on a vaccine was key for most of these companies. Previously, all three vaccines available in the U.S. were only approved under Emergency Use Authorization and had not been fully approved by the FDA. With the FDA’s approval of the Pfizer vaccine, employers see less risk and have used that decision as a green light for mandates.
While courts and state legislatures continue to define the legality of mandating the vaccine, employers may be willing to risk legal battles because their business model – and perhaps even their survival – demands it. For example, Delta Airlines made headlines after canceling hundreds of flights because of lack of flight personnel to staff its routes. Other employers however have chosen not to incentivize or mandate vaccines in the workplace due to their high voluntary vaccine adoption rates or virtual work environments. Those with current staffing shortages fear even tougher recruitment impacts with vaccine mandates and employers in several states cannot deploy incentives or mandates where laws have been enacted prohibiting or limiting vaccine mandates.
What action(s) can an employer take if an employee refuses the COVID-19 vaccine?
Companies have taken different approaches to address employees refusing to get a vaccine even after the mandate. Some companies, like Disney, Walmart, and Roche, have said employees who are not vaccinated with the exception of those with medical conditions or “sincerely held” religious beliefs by a deadline will be terminated.
Other employers have used various other methods. Delta Airlines, as previously mentioned, is making unvaccinated employees pay extra on its health benefits each month. Some employers are subjecting unvaccinated workers to frequent COVID-19 tests, enforcing mask wearing, and enforcing social distancing measures. Many employers continue to operate in a fully virtual work model or have used other policies to limit their workplace risks.
Prior to issuing a vaccine mandate policy, taking action against an employee related to vaccine refusal, or instituting vaccine incentives employers should seek legal counsel to ensure that the amount of legal risk is assessed and weighed against the business needs of the organization.
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