Even before the coronavirus vaccines were approved for distribution, COVID-related workplace issues were already a legal hotbed for employers.
In December 2020, Pfizer and Moderna vaccines received FDA emergency approval to begin the fight against COVID-19. Vaccination programs are running across the country. The Equal Employment Opportunity Commission acted swiftly in December, issuing guidelines stating that employers can generally require coronavirus vaccinations for workers.
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However, that council contains a long list of provisions, particularly those relating to Title VII of the Civil Rights Act of 1964 and the protection of the Americans with Disabilities Act. It is important that employers and benefit managers are familiar with the legal ramifications regarding COVID-19 vaccination mandates and the precautions required for those who cannot be vaccinated.
What is the EEOC’s Vaccination Policy?
The EEOC guidelines state that employers may require COVID-19 vaccinations for workers provided their guidelines comply with pre-existing ADA disability and Title IV anti-discrimination measures, as well as other applicable labor laws. In general, the new EEOC recommendation encourages employers to respect the rules for housing those with medical concerns or religious objections. As the Gesellschaft für Personalmanagement points out, employers with unionized workers may also need to reach an agreement with the unions involved before ordering vaccines.
While the ADA prohibits discrimination based on disability or medical status, it allows employers to implement a qualification standard, including “a requirement that an individual should not pose a direct threat to the health or safety of anyone in the workplace”. If a vaccine requirement conflicts with a worker’s disability, the employer must demonstrate that the unvaccinated worker has reached the “direct threat” threshold and take reasonable precautions, e.g. B. the permission of the employee to work from home or to take vacation.
While the ADA prohibits employers from conducting medical examinations, the EEOC does not equate giving a vaccine with an examination. However, legal experts warn that asking the vaccine necessary before screening can generate information about disability. Employers who choose to be given vaccines must therefore demonstrate that such questions are “job-related and consistent with business need” prior to screening. Or, they choose to avoid the problem by voluntarily giving vaccinations or requiring the use of independent third-party providers.
Title VII Regulations
Under the guidelines of Title VII, an employer must take into account a worker’s sincere religious beliefs unless it creates an undue burden on the company. The definition of religion is broad, so employers should generally assume that a request for religious placement meets the standard of sincere belief. If accommodation for religious exemption incurred more than just de minimis costs or burdens, the employer could exclude the employee from the job.
Are vaccine mandates and incentives equally problematic?
Even before the coronavirus vaccines were approved for distribution, COVID-related workplace issues were already a legal hotbed for employers. This trend is expected to continue as more workers are already back to work and are encouraged to return in greater numbers. First and foremost, companies need to assess whether the legal risks of a vaccination policy outweigh the organizational and safety benefits of their employees. While the mandate for COVID-19 vaccines contains an unwieldy list of potential legal issues, companies can achieve the comprehensive level of vaccination they are aiming for by training and incentivising employees instead.
Some programs currently offered by large companies include:
- Preparation of information and holding virtual town halls to answer vaccination questions.
- Providing paid time off for the time needed to get vaccination.
- Offers cash rewards for vaccination.
- Additional paid time off for any vaccine-related side effects.
That is not to say that incentive programs have no legal consequences of their own. For example, the ADA prohibits employers from putting pressure on employees to participate in wellness programs. Legal challenges in this area were an issue long before COVID-19 made itself known.
On January 7, the EEOC proposed new guidelines for wellness programs that limit the value of incentives employers can use to encourage employee participation, especially those that collect health data. Under the proposal, incentives that have more than a minimal value would be seen as a violation of the ADA and Genetic Information Non-Discrimination Act. The newly proposed ADA guidelines state, “If too high an incentive is allowed, employees will feel compelled to disclose proprietary medical information in order to receive a reward or avoid punishment.”
On January 20, the Biden administration stopped evaluating the new ADA and GINA guidelines until they can be reviewed by the newly appointed EEOC chair, which further saddens decisions about wellness incentives.
For the sake of clarity, SHRM and 41 large corporate groups filed a letter to EEOC on Feb.1 asking how employers can incentivize workers to vaccinate without breaking the Disability Act [ADA] and other laws enforced by the EEOC. “The letter signed by the US Chamber of Commerce, the National Restaurant Association, the National Retail Federation and others encourages the EEOC to” define as much as possible what qualifies as an eligible incentive. “
What does this mean for performance managers, brokers and consultants?
Performance managers, brokers and advisors play a vital role in advising stakeholders on how to restore jobs to pre-pandemic normality, placing them on the front line of the potential litigation minefield for both mandates and incentives.
Until the EEOC responds specifically to the incentive problem, many law firms, recruitment agencies, and performance agencies advise caution. In addition, some economists argue that offering an incentive or reward to someone who is undecided could instead cast doubts about the vaccination itself. Several experiments show that test subjects equate a payment for participating in an activity with the risk of the activity.
Currently, employers can best be served by promoting factual information and positioning the vaccine itself as a reward. By implementing a comprehensive system to record and investigate all types of compensation claims in the workplace, such as: B. Work Shield, employers put themselves in the best possible position to manage cases and avoid risk during and long after COVID-19.
Travis Foster is the Chief Legal Officer at Work Shield.