What Employers Can And Can’t Do

Although there has been a large initial wave of vaccinations, many people may not get vaccinated … [+] without incentives.

Jacob Lund – stock.adobe.com

According to the Centers for Disease Control and Prevention (CDC), approximately 45% of the US population is fully vaccinated against the coronavirus. The number of confirmed coronavirus cases is also falling to numbers that we have not seen since the pandemic began. This is great news and hopefully this positive trend will continue.

In response to fewer people becoming infected, communities and businesses are starting to reopen. Now that the coronavirus vaccine is readily available, many employers are faced with the challenge of deciding how to deal with workers who do not want to be vaccinated.

This puts employers in a difficult position. If some of their employees refuse to receive the coronavirus vaccine, it can increase the risk of infection for their employees, customers and business partners. This could result in workers being sent back home or reintroducing mask wearing and social distancing guidelines.

On the other hand, there may be other problems when they ask their employees to be vaccinated. These can include difficulties in enforcing the mandate, political implications and potential legal proceedings. One of the biggest concerns of employers is that one or more of their employees will react in a serious and life-threatening manner to the vaccine.

Some companies are taking a wait and see approach, but many others have chosen to either require their workers to get the coronavirus vaccine or to incentivize workers who choose to be vaccinated. Let’s examine how federal labor laws apply to the latter two approaches.

Employee obligation to get vaccinated

According to federal law, an employer can demand that all of its employees be vaccinated against the coronavirus on site. There are two major exceptions to this employer’s law.

The first exception concerns the employee’s religious beliefs. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers with 15 or more employees must not discriminate against workers on the basis of various characteristics, including religion.

In order to obtain religious exemption under Title VII, an employee must demonstrate that he or she has a genuine religious belief. You must also prove that not vaccinating would not result in undue hardship for the employer.

Employers need to recognize that some demographics have more difficulty getting vaccinated than others. If this results in vaccination policies disproportionately affecting people of a particular demographic, the employer could be violating Title VII.

The second exception concerns protected medical conditions. The employee could have a disability recognized by the Americans with Disabilities Act of 1990 (ADA) and that disability puts the employee’s health at risk if given the coronavirus vaccine. If so, they may be eligible for a vaccination waiver. However, the exemption from the coronavirus vaccination must not be an unreasonable burden on the employer.

An employer’s coronavirus vaccine policy was recently under legal scrutiny when the Houston Methodist Hospital requested that all of its employees receive the coronavirus vaccine. Some employees did not want to get the vaccine. They filed a lawsuit to prevent the hospital from enforcing the vaccination requirement and carrying out their inevitable terminations.

In a five-page opinion, Judge Lynn N. Hughes of the US District Court for the Southern Texas District ruled in favor of the hospital and dismissed the lawsuit. The employees want to appeal.

Employer incentives for employees who get vaccinated

Subject to certain reservations, an employer may offer rewards to employees for receiving the coronavirus vaccine. Many companies have already offered various incentives to get more of their employees (and customers) vaccinated against the coronavirus. This usually includes hours of paid vacation, gift cards, or cash. But how an employer can lawfully use such incentives on workers depends on how the workers get their vaccinations.

If the employer offers the vaccine against the coronavirus, the incentive must not be mandatory. This often means that the incentive has to be low. A de minimis incentive would relate to something like a t-shirt, water bottle, or movie ticket. If the incentive was too great, he could force an employee to get vaccinated if he didn’t want to.

Why is that important? This is important because before employers could administer the vaccine, they would have to ask employees about their medical history as part of the vaccine pre-screening.

According to the ADA, workplace health initiatives (which would likely include a coronavirus vaccination program in the workplace) can only collect medical information from employees if participation in the program is voluntary. One reason for this is that such inquiries could reveal an employee’s disability.

All information received from employees during this process must be treated confidentially in accordance with the requirements of the ADA. In addition, when inquiring about health information, avoid referring to the employee’s family history or genetic information. Otherwise, the employer could potentially violate the Genetic Information Nondiskrimination Act of 2008 (GINA).

If the employer requires its employees to provide proof of vaccination from a third party (e.g. their doctor or a pharmacy), the employer has a little less to worry about.

The US Equal Employment Opportunity Commission (EEOC) stated in a recently updated guide that an employer requesting proof of vaccination is not a disability-related exam as defined by ADA (or genetic information or family history inquiries as per GINA). Therefore, the de minimis requirement with regard to incentives does not apply.

Because of this, you will find that many employers offer vaccination premiums in excess of $ 100. Employers must keep in mind that the information received about the employee’s vaccination status should still be treated as confidential medical information.

But what happens if an employee wants to be vaccinated against the coronavirus but is unable to do so for a legally recognized reason, such as religious affiliation or a disability? The employer should find another way to allow the employee to receive the incentive without receiving the vaccine.

Failure to provide this accommodation by the employer may constitute unlawful discrimination in violation of Title VII or the ADA. Without the shelter, the employer is effectively communicating to the employee that they are not eligible for the incentive due to a religious belief or medical condition.

Kroger is an example of how a company can potentially avoid this problem. Kroger offers its employees $ 100 to receive the coronavirus vaccine. But those who cannot get the vaccine for religious or medical reasons can take a health and safety course and still receive the payment of $ 100.

Employers need to be extra careful in offering this incentive while providing housing. This is because when deciding whether placement is warranted, the employer may want to ask the employee for information about their medical history.

This could be a disability-related investigation under the ADA and so the coercive incentive rule could come back into play. One way to get around this would be for the employer to simply accept an employee’s word that they have a medical reason why they cannot receive the coronavirus vaccine.

However, this could create another problem for employees who exploit this policy to create a loophole. In theory, they could be lying because they have a medical reason for not getting the vaccine but still getting the incentive.

It is now clear why employers shy away from dealing with employees who do not want to be vaccinated.

Bottom line

Subject to certain medical and religious exceptions, employers may require their employees to be vaccinated against the coronavirus in order to keep their jobs. However, employers should consider the legal and public relations ramifications of this type of policy.

Employers can also offer special rewards to workers receiving the coronavirus vaccine. But depending on how they conduct such a program, employers need to be careful about the type of information they require from their employees, properly secure any information received, and ensure that the incentive is not too great to be coercive (where applicable).

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