Requiring Covid Vaccinations or Providing Incentives

By Susan Kreeger

As you develop your return to work strategy, COVID-19 vaccination policies are likely on your radar. Should you mandate, incentivize, or avoid the topic altogether? Determining the right path forward is complex, and there is no right answer. Each organization needs to decide what makes sense for their employees and work environment.

In a previous blog, we discussed the pros and cons of mandatory vaccination programs. Many employers are choosing not to dictate to their workforces, instead electing to educate and encourage vaccination. This article focuses on prompting employees to take the jab by offering perks and extra benefits. Krispy Kreme donuts next to COVID-19 vaccination card

We review the following topics:

Innovative Forms of Incentives

Even before vaccinations became a return to work issue, a number of entities, including state governments and others, introduced creative gifts or giveaways to entice people to take the vaccine. For example, Ohio established a $1 million lottery, Krispy Kreme offered free donuts, and Uber provided free rides to vaccine appointments.

Now, a number of employers are exploring the idea of customized incentives for their workforces. The benefits range from bonuses and gift cards, to time off and company gear or products. Even the White House has entered the discussion by furnishing tax relief to small businesses and nonprofits who provide employees with paid time off to obtain the shot.

The EEOC’s Response to Vaccine Incentive Questions

In late June 2021, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers, and in Questions K.16-K.21, specifically addressed some of the business community’s legal concerns surrounding incentives.

In summary, the EEOC indicated that the following actions, if implemented properly, do not violate federal equal employment opportunity (EEO) laws:

  • Requiring employees be vaccinated to return to work
  • Encouraging employees and their family members to get vaccinated
  • Providing incentives to employees who voluntarily share their vaccination status or confirmation of vaccination
  • Offering perks to employees accepting vaccinations administered by the employer or their agents

These actions do not run afoul of federal law so long as employers comply with reasonable accommodation requirements of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), do not discriminate against employees based on federally protected categories (e.g., race, religion, disability, etc.), and abide by other considerations for accessing employee medical and genetic information.

How these federal laws affect a particular program turns on who facilitates the vaccine’s administration, dividing incentive rules into two groups — one that applies to employer-run vaccinations and one to vaccines administered by independent healthcare providers. The EEOC Guidance provides general information about these concerns, so each employer should seek legal advice about their unique situation.

Vaccines Obtained in the Community

According to EEOC’s guidance, employers may ask for proof of vaccination from outside sources (i.e., pharmacies, hospitals, other health care providers) and even incentivize employees to share that information without violating the ADA or Genetic Information Nondiscrimination Act (GINA).

The only requirement identified by EEOC is that employers who collect proof of vaccination must comply with ADA directives to store such data in files separate from other personnel records.

Vaccines Offered by An Employer or Its Agent

Employers may provide incentives to encourage workers to participate in vaccination clinics on-site or run by an organization linked to the employer, but the incentive must not be so valuable that it coerces participation in violation of the ADA.

EEOC explains that pre-vaccination questions may reveal health histories and disability-related information. If an employer offers a valuable incentive, some individuals may feel compelled to reveal such information in order to receive this desirable benefit. Unfortunately for employers, the EEOC fails to identify what crosses the line into being coercive.

With little guidance from the EEOC, some in the legal community have recommended that employers avoid administering the vaccine at their facilities. Instead, companies should contract with a provider and inform employees of the opportunity and information about how to schedule an appointment. For those employers who cannot or do not want to keep the process at arm’s length, they must consider that the greater the value of the incentive, the more likely that it will be viewed as coercive.

Employers who also offer incentives if family members obtain their vaccinations through the company need to consider both the ADA and GINA requirements. Family members may reveal protected health information about the employee when answering family history questions and acquiring such information in exchange for an incentive may violate GINA’s prohibition against payment for genetic information.

Other Legal Concerns

Depending on the nature of the benefit or gift provided, other federal and state laws may come into play. For example, employers who provide bonuses or cash payments may need to consider if these payments fall within federal and state wage and hour laws and what effect they may have on payroll and overtime.

Additionally, some states have enacted medical information privacy and disability laws that may impact the use of COVID-19 vaccination incentives. Before rolling out a vaccine incentive program, employers should review their plans with legal counsel.

Real World Examples of COVID-19 Vaccine Policies

COVID vaccine protocols are not one-size fits all, and each organization will follow their own process to determine what makes sense for them. However, whether a company chooses to mandate, incentivize, or do something different, the following organizations may serve as a guide:

Large organizations requiring employee vaccination are paving the way for medium and small organizations to be more comfortable taking this position. Some companies going in this direction include Morgan Stanley, Google, United, and New York-Presbyterian.

For those providing incentives, the list of employers is as varied as the nature of the benefits conferred. Amazon, Amtrak, and Trader Joe’s will pay cash or bonuses. Some employers, such as Target, Starbucks, and Apple are opting for paid time off. Gift cards are another option offered by Kroger and Publix. Other creative ideas include sweepstakes, reimbursement for travel expenses to vaccination sites, and scheduling accommodations to facilitate receiving a shot.

In an effort to include all workers, some employers, such as Kroger, are providing incentives to those who receive medical or religious exemptions if they complete educational courses. This option may also avoid disability or religious discrimination claims.

Some organizations feel so strongly about the need to provide a safe environment that they are not only mandating vaccinations for their employees, but they are also requiring that students, audiences, or customers show proof of vaccination. As an example, New York City recently announced that restaurants, gyms, and performances must inquire about vaccine status before permitting patrons to enter.

Review Your Options with RealHR

When it comes to COVID-19 vaccination policies, companies are going in a number of directions, and some are showing real creativity in addressing this issue. What will work for your organization may not work for another, so while the marketplace may offer guidance, it may not resolve the issue for you.

At RealHR, we focus on a company’s unique needs. Our team of HR professionals welcomes the opportunity to meet with you and help you determine what makes sense for your business.

The blog should not be construed as legal advice