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More and more employers are turning to a time-tested method to encourage employees to get the COVID-19 vaccination: They're paying them off.
Oh, they could just require it, as the Equal Employment Opportunity Commission determined on December 16. The EEOC confirmed that requiring vaccinations does not violate the Americans With Disabilities Act, which prohibits employers from conducting medical examinations. The EEOC said the purpose of employer-required vaccinations is not to gain medical information, but to protect employees from contracting COVID-19.
Even so, however, many employers are hesitant to do so because it raises various cost and liability issues. For instance, if an employer puts a vaccination mandate in place, they must provide “reasonable accommodations" to people who refuse vaccinations on religious grounds or due to a disability.
Therefore, most employers have instead been strongly recommending that employees get the vaccination.
The problem, of course, is that not all employees want to be vaccinated. They range from those who have religious reasons to those who are “anti-vaxxers" who are distrustful of science and the “deep state."
So, how are employers dealing with these hesitant employees? More and more, by offering them money to get vaccinated.
Here are some examples:
It's a bit early to gauge how these programs are working – we're still in the early stages of the vaccine rollouts — but a recent survey found that one third of vaccine-hesitant respondents said they would agree to be vaccinated for as little as $100.
However, like other mandatory workplace policies, the payment arrangements don't come without legal risks of their own.
First and foremost among them is whether the incentives could be seen as being so enticing that they are coercive, thereby violating federal anti-discrimination law because they could possibly touch on worker health information.
Another is whether an employee who claims a valid exemption from vaccination on religious or disability grounds has a discrimination case if they don't receive the bonus as well.
Attorney Natalie Sanders told Forbes that employers must pay attention to who is gathering the health information preceding the vaccinations. An employee's vaccine information is medical information, and under the Americans With Disabilities Act, it must be kept confidential by an employer.
Meanwhile, EEOC has weighed in by publishing proposed regulations governing vaccination incentives. They would allow employers to offer “de minimis" incentives such as gift cards of modest value as part of a “participatory" wellness program that asks employees to provide medical information.
The “participatory" part here is key because that would remove liability risk under federal anti-discrimination law.
It's also unclear what qualifies as “de minimis." For instance, several large companies have said they will provide paid time off for employees to get vaccinations and, if necessary, recover from them. Does that qualify as “de minimis?"
Also, will a voluntary health program have the strength to bring about the kind of workplace safety employers are seeking?
It will be months before the rulemaking process is complete, and things could change dramatically by the time it is finished. Like so many areas of life these days, all we can do is wait to see how it all shakes out.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.