By Michael L. Dodd, Partner and PIA Association Counsel, Ferrara Fiorenza PC
The current law does not permit employers to require their employees to get the Covid-19 vaccination. However, employers can take steps to promote education about the vaccine among their workforce and provide certain incentives to encourage their employees to get the vaccine and/or exercise safety. Effective education of your workforce can result in greater morale and an increased feeling of safety in the workplace, which can translate to a more effective workforce.
On January 7, 2021 the Equal Employment Opportunity Commission (EEOC) issued a proposed rule addressing the legal guidelines of employer-backed vaccine incentive programs. Although initially welcomed by many, some employers eventually criticized the proposed rule, complaining of its vagueness. Considering these complaints, and due to failure to comply with Federal Rulemaking procedures, the EEOC removed the proposed rule from its website on February 12, 2021. Now, without any guidance from the EEOC, employers are at a crossroads as to how to administer vaccine incentive programs which they hope will increase employee compliance with Covid-19 vaccination, without infringing on their employees’ rights.
Employers looking to foster an increase in employee morale and a safer workplace resulting from broad vaccination of the workforce may want to consider offering an incentive program to employees to entice them to get the vaccine. However, before developing such a plan there are a few things that employers should consider.
Remember that incentive programs which provide employees with monetary or other tangible inducement to get vaccinated can present problems associated with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act with respect to employees’ religious freedoms. While the EEOC has approved the practice of asking employees if they have been vaccinated or to provide proof of vaccination, there is a concern that certain other pre-screening questions may violate employee protections about health conditions or religious beliefs.
Employers must be careful not to violate the rights of employees with disabilities or their employees’ sincerely held religious beliefs. For example, if an employee informs the employer that a medical condition prevents the employee from getting vaccinated, the employer may be required to provide the employee with an incentive to avoid/combat discrimination claims. If the employee provides a medical certification to this effect, they may be entitled to a reasonable accommodation that allows them to receive the incentive (unless the employer can show that providing the incentive would be an “undue hardship” as defined by the ADA). To add to the uncertainty associated with such a scenario, the CDC has not published a list of medical conditions that would prevent a person from getting the Covid-19 vaccine.
Employers should also be aware that while the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s prohibition against disability-related inquiries, which are inquiries likely to elicit information about a disability. One way to avoid this complication would be to not provide the vaccine or coordinate its administration. Instead, if an employee receives a vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA’s “job-related and consistent with business necessity” restrictions on disability-related inquiries which restrict employers would not apply.
Similarly, if an employer is on notice that an employee’s sincerely-held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer is required to provide a reasonable accommodation for the religious belief, practice, or observance. This is likewise subject to an “undue hardship” standard under Title VII of the Civil Rights Act. While the undue hardship standard is not as strict a standard as required when considering disability-related impediments to vaccination, it is still a hurdle that employers must be prepared to overcome.
So how can you provide an incentive based on receiving the Covid-19 vaccine to one employee without violating the rights of another who cannot get the vaccination? If there are employees who cannot get the Covid-19 vaccine for disability-related or religious reasons, employers can provide reasonable accommodations which would allow them to qualify for the same incentives as their vaccinated co-workers. For example, employees who cannot get the vaccine for health or religious reasons might instead be required to watch a COVID-19 safety video or attend a COVID-19 seminar in order to obtain the same incentive that vaccinated employees receive.
Another option for employers looking to avoid the legal pitfalls of a vaccine incentive program would be to provide educational materials to employees about the Covid-19 vaccine, with the hopes that the employees themselves will decide to get the vaccine. This can be done in the form of a communication program encouraging employees to follow CDC recommendations regarding guidelines or providing employees with information to help them make an educated decision about vaccinations. Such information could discuss hot button issues such as how the vaccine was developed, how it works, and the pros and cons of vaccination.
If you have any questions about promoting vaccination among your employees or the legal ramifications related to the ADA and Title VII, or for assistance with any employment-related matter, contact Michael L. Dodd, Association Counsel, Ferrara Fiorenza PC, (315) 437-7600, firstname.lastname@example.org.
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