Last month the Department of Health and Human Services – Centers for Disease Control and Prevention (“CDC”) updated its COVID-19 guidelines for fully vaccinated individuals.
The updated guidelines provided that fully vaccinated individuals could resume any indoor or outdoor activity without masks or social distancing, unless federal, state, or local law required it to do so. For many, including employers, the CDC’s latest guidance provided a ray of hope that this global pandemic is nearing its end. However, COVID-19 still poses many risks and challenges for employers to consider if they are looking to move their operations to pre-pandemic formats. One such challenge for employers is to implement lawful and effective strategies to motivate reluctant workers to get COVID-19 vaccination.
Background and mandatory vaccinations
At the last count, more than 51 percent of Americans received at least one dose of a COVID-19 vaccine, and 43 percent of Americans were fully vaccinated. As vaccination numbers continue to rise, current data suggests that many people are still resistant to vaccination. Almost half of all Americans have not yet received a dose of a COVID-19 vaccine, although such vaccines are now widely used. Accordingly, the urge continues for many employers to have their entire workforce vaccinated.
Employers may be reluctant to require their employees to be vaccinated, although in most cases it is acceptable as long as there are no religious or disability issues involved. In particular, workers who cannot receive the vaccine because of a disability or a genuine religious belief, practice, or observance should not be discriminated against by their employer for refusing to be vaccinated. Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) require an employer to provide reasonable accommodation for such employees unless the provision of such accommodation would cause undue hardship for the company and its operations (which can be difficult to illustrate). Employers should also keep in mind whether compulsory vaccination has different effects on workers in one or more of the categories protected by Title VII (or disproportionately excludes them). Worldly beliefs and beliefs about the medical effectiveness of the vaccine itself, however, will not be enough to preclude employers from being required to vaccinate.
Incentive programs and restrictions
These sensitive issues, including employers’ reluctance to force their employees to vaccinate, have led many employers to instead offer incentives such as paid time off, gift cards, or other perks for employees who voluntarily choose to vaccinate. Until recently, however, the EEOC, which is mandated and empowered to regulate state anti-discrimination laws such as the ADA, the Genetic Information Nondiscrimination Act (“GINA”), the Rehabilitation Act, and Title VII, had not provided any official guidance on the admissibility of dated Employers provided COVID-19 vaccination incentives.
That changed on May 28, 2021 when the EEOC updated its COVID-19 guidelines, with the proviso that employers MAY provide incentives to workers who in most cases choose to be vaccinated (see Section K and its subsections K. .16 to K.21).
There are limitations. For example, the EEOC prohibits any incentives “so significant that they lead to coercion”. The EEOC offers:
Because vaccination employees require that screening questions about disabilities be answered prior to vaccination, a very large incentive could result in employees feeling pressured to divulge proprietary medical information. As explained in K.16, however, this incentive restriction does not apply if an employer offers its employees an incentive to voluntarily provide evidence or other confirmation that they themselves received a COVID-19 vaccination from a third party provider other than their employer or a representative of your employer.
This limitation on essential coercive incentives does not apply to employers who do not administer the vaccine to their workers or who allow an employer representative to administer the vaccine. However, employers must protect employees’ vaccination information in accordance with ADA confidentiality requirements.
The EEOC also clarifies that while employers can (in many cases) incentivize their workers to promote vaccination, the GINA prohibits employers from incentivizing an employee if a worker’s family members are vaccinated by the employer or his agent. This type of employer incentive program is prohibited under GINAs Title II in the context of health and service delivery. The EEOC states that such an incentive program “would require the vaccinator to ask the family member pre-vaccination medical screening questions, including medical questions about the family member …[ing] the receipt of genetic information in the form of the employee’s family history by the employer. (Emphasis in the original). However, the restriction does not extend to employers who encourage workers to provide confirmation that their family members have received a vaccine from their own health care provider. The EEOC notes that this type of situation “is not an illegal request for genetic information under GINA, since the fact that someone has received a vaccination is not information about the manifestation of a disease or disorder in a family member … other form genetic information. ” Furthermore, according to GINA, there are no prohibitions preventing employers from offering vaccinations to a family member of an employee without the offering being an incentive.
While employers may require workers to receive a COVID-19 vaccine and provide incentives to motivate workers to receive it as long as the restrictions outlined above are respected, the best rule of thumb is to speak to your labor attorney to before taking such action to ensure that your expected approach is acceptable.
© 2021 Ward and Smith, PA. All rights reserved.National Law Review, Volume XI, Number 162