The
HR
REPORT
Show Me the Money: Vaccination Incentive Policies By Patrick Landroche, Esq.
W
orkplace morale, political concerns, the emergency use authorization – these reasons, among others, are why many public employers are not presently mandating the COVID-19 vaccine. Nonetheless, and especially in light of the recent CDC guidance stating that vaccinated individuals can be indoors without masking or social distancing (https://www.cdc.gov/ coronavirus/2019-ncov/vaccines/fully-vaccinated.html), employers are looking to maximize the number of vaccinated personnel at their workplaces. That being the case, employers are asking whether they may implement a vaccine incentive policy, and if so, what would that look like? Fortunately, the Equal Employment Opportunity Commission (EEOC) recently issued new guidance on such incentive policies. Before the new guidance was issued, employers seeking to offer a vaccine incentive faced a sea of uncertainty. Mainly, they had to be mindful of the Americans with Disabilities Act (ADA) and the EEOC’s Proposed Rules for incentives for wellness programs sponsored by employers. Title I of the ADA prohibits discrimination against individuals on the basis of disability in regard to employment compensation and other terms, conditions, and privileges of employment, including “fringe benefits available by virtue of employment, whether or not administered by the covered entity.” Fringe benefits include the benefits offered to employees who become vaccinated. Under the Proposed Rules, which were frozen by the Biden administration, there was an argument that for a vaccine incentive to be lawful (i.e., in compliance with ADA), the incentive could only be deminimis, meaning something of little or nominal value. For example, an employer could offer a bottle of water or a $5 gift card, but not airline tickets or $100 to employees who became fully vaccinated. 44
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The new EEOC vaccine guidance makes clear that employers may offer any incentive to employees who affirmatively state that they have been vaccinated, or to those who provide documentation (vaccination card) or other confirmation that they received a vaccination. The incentive offered is only limited when employers administer the vaccine directly or through an agent to their employees – in that case, the incentive cannot be so substantial as to be coercive. In short, then, the EEOC has stated that employers may offer a vaccine incentive and may require employees to provide proof of vaccination to receive the incentive. Therefore, the question becomes: how should employers implement a vaccine incentive policy? Below are three steps employers should follow when crafting an incentive policy. First, employers must decide whether, and, if so, how they will require proof of vaccination in order for employees to qualify for the incentive program. Employers have a few options here: they could establish an incentive program based entirely on the honor system; or, to ensure employees are being vaccinated, they could require some type of proof, such as having employees provide a written certification confirming their vaccination status or by asking employees to provide a copy of their vaccination card. If either of these latter options are selected, the employer must maintain such documentation as confidential employee medical information. Second, employers must determine what incentive they will offer to employees for being vaccinated. Nationally, many companies are offering paid time off for employees to be vaccinated. Giants like Amazon are offering frontline workers who get vaccinated a bonus of up to $80. Walmart takes the prize for a unique twist on a vaccination incentive: employees who show their vaccination card are being of-
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