How far can an employer go to require or encourage employees to be vaccinated against COVID-19? Federal guidelines leave some room for interpretation and discretion, especially when objections from employees are based on a person’s religion or disability.
Recently updated guidelines from the U.S. Equal Employment Opportunity EEOC stated that such requirements would not violate existing federal discrimination laws as long as reasonable precautions are taken when necessary, such as: Employers can also offer incentives to encourage employees to get vaccinated, the guide says.
The right of employers to order vaccinations has already been denied for legal reasons. “Employees have already filed lawsuits over the fact that the vaccines are currently only marketed under an Emergency Use Authorization (EUA),” said Gerald C. Waters, Jr., partner at Meltzer, Lippe, Goldstein & Breitstone, LLP in Mineola.
A Texas federal court on June 12 dismissed a lawsuit filed by Houston Methodist Hospital staff who faced a suspension and eventual dismissal for denying the shooting. The employees announced that they would appeal.
Gerald C. Waters, Jr. Partner at Meltzer, Lippe, Goldstein & Breitstone, LLP. Mineola, NY, April 2021 ……. bzHERZ210628 Photo credit: Meltzer Lippe
The EEA was enough to get hundreds of millions of doses into the arms of Americans to contain the spread of the virus after official reviews found the vaccines very safe and effective. However, there is no final approval by the Food and Drug Administration.
The EEOC guideline states: “It is outside the EEOC’s responsibility to discuss the legal implications of the EEA or the FDA approach.” The EEOC guideline simply focused on whether mandatory vaccination conflicts with federal civil rights / equal opportunities laws like the Americans with Disabilities Act and Title VII of the Civil Rights Act, Waters said.
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Corporations also have to comply with state laws like the New York State Human Rights Law, which prohibits discrimination, but Waters said he was unaware of the current state law that specifically prohibits employer vaccination mandates.
The federal EEOC guidelines state that “federal EBO laws do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated against COVID-19,” while “taking reasonable precautions” for Objections based on religion or disability are allowed – “unless they offer accommodation”. would present undue hardship on the employer’s operation “, including undue cost.
In addition to the mandate question, the guideline also makes it clear that incentives can be offered for employees who voluntarily submit proof of vaccination.
Yale Pollack, Partner at Campolo, Middleton & McCormick, LLP; Photo taken in January 2021. Credit: Bob Giglione Photography
It does state, however, that incentives may be offered to an employee who receives a vaccination given by their employer or their agent, provided “they are not significant enough to be compelled,” says Seth Kaufman, a partner in the New York office by Fisher Phillips.
The guidelines don’t address limits on incentives for vaccinations that are obtained outside of their employer, such as in a government facility or pharmacy, he says. Nor does it set any parameters for which incentive size could be viewed as a coercive measure. Kaufman encourages employers to use “common sense”.
Kaufman says some employers offer incentives, but believes that number could rise as more people return to the office. Still, offering incentives “could be a slippery slope,” says Yale Pollack, partner at Campolo, Middleton & McCormick LLP in Ronkonkoma.
Incentives? Be consistent
For example, if a company offered an incentive to the first round of employees who wanted to get vaccinated but now feel they need to step up the effort to encourage those who are still hesitant, it could pose a problem for those who were previously vaccinated, he says hey. Pollack’s advice is to be consistent and not change the incentives initially given.
Barbara DeMatteo, Director of Human Resources Credit: PMP
Also, keep in mind that bad feelings may arise if someone with a narrow religious belief cannot be vaccinated and thus not be incentivized.
Pollack pointed to Kroger, the supermarket chain, who found a way by paying a one-time $ 100 to employees who presented proof of vaccination, but also to those who couldn’t get a vaccination for medical / religious reasons if they did have completed a health / safety course.
Barbara DeMatteo, director of recruitment at Portnoy, Messinger, Pearl & Associates, Inc., based in Jericho, says that companies that offered incentives did so by providing either two or four hours of paid time, to get the vaccine, or have held a lottery drawing with the names of those who presented proof of vaccination.
As for the vaccine, she has not yet commissioned any customers.
FILE – A COVID-19 vaccination record is shown in this December 24, 2020 file photo taken at the Seton Medical Center in Daly City, California. California provides residents with access to a digital record of their coronavirus vaccinations that they can use to access businesses or events that require proof of vaccination. The state’s health and technology departments announced on Friday, June 18, 2021 that the new tool will allow Californians to access their records from the state’s vaccination registry. (AP Photo / Jeff Chiu, File) Photo credit: AP / Jeff Chiu
The biggest hurdle in mandating is: “If an employee rejects the vaccine, how do you deal with it?” says DeMatteo.
Of employers considering incentivizing workers to get the vaccine, the two most popular categories are cash / gifts (38%) and paid time off (30%).
Source: Fisher Phillips