Legal questions arise on the role of workplace incentives

With the Covid-19 vaccination rollout significantly increasing in pace just over the past month, herd immunity cannot be far from becoming reality. Getting back to some sense of normalcy has been a community quest for over a year. For employers, the rollout of vaccines has raised a host of questions. How can employers talk to employees about getting vaccinated? What encouragement can employers provide to employees who do get vaccinated?

Guidance from the Equal Employment Opportunity Commission indicates that employers may mandate that employees get vaccinated but with certain legal limitations, such as reasonable accommodation to an employee due to religion or disability. However, studies suggest many employers are instead deciding to encourage their workforce to get vaccinated under a voluntary program. Those employers are now determining what measures they can take to increase the likelihood that their workforce follows this encouragement.

At the outset of the pandemic, and then later with return to the office, employers turned to communication and education. Keeping employees informed about what was happening and providing employees with information about the pandemic and the virus allowed for a smoother transition. These same tools ring true for vaccines.

In March, to assist companies with the vaccination effort, the Centers for Disease Control and Prevention recommended steps employers can take to build vaccine confidence with employees in the workplace. Building understanding about the vaccines and knowledge as to the benefits of vaccinations leads to increases in participation by employees.

The CDC’s steps include:

• Encourage leaders to be vaccine champions and share their personal reasons for getting vaccinated and why it is important to be vaccinated.

Vaccine champions should reflect the diversity of the workplace.

• Open up a dialogue and listen to employee questions, explore their concerns and help them choose their reason to get vaccinated.

• Develop a communications plan and provide information about the vaccines using different platforms, such as online links, emails, posters and town halls.

• Educate people about the vaccines and where they can get additional information.

• Provide regular updates about what is known and unknown about the vaccines, including the effectiveness, benefits, safety and side effects.

• Make visible other employees who get vaccinated and celebrate it. The CDC suggests encouragement by providing stickers to employees after vaccination.

Employers are also considering incentives, such as cash payments, paid time off or extra vacation time, to those employees who get vaccinated. Such incentive programs, however, raise several unsettled legal questions. Employers should seek legal advice before implementing a program or hold off on such programs until there is more guidance available.

Some of the legal concerns occur when a voluntary program is seen as coercive due to pressure exerted on employees to comply. Similarly, if an incentive is significant in reward, the voluntary program starts to look less like an incentive and more like a punishment for those who do not participate. Wage and hour and tax implications may also arise when employers consider “cash” incentives to employees.

Employers must also be mindful of the EEOC’s guidance detailing when employers must provide a reasonable accommodation to employees. For example, a company could accommodate an employee who cannot get the vaccine due to disability or a religious belief by requiring the employee instead to complete a safety program on the spread of Covid-19 in order to obtain the same incentive as those who get vaccinated. A company could also extend the timing of a particular incentive to accommodate a pregnant employee who wishes to wait to get the vaccine.

Earlier this year, the EEOC provided guidance on wellness programs, instructing employers that only “de minimum incentives,” such as “water bottles” and “small dollar gift cards” were allowable. The new administration removed that guidance and put a freeze on those proposed regulations. At a White House press briefing, the Biden administration offered ideas for promoting vaccinations, such as paid time off or compensation for employees to get vaccinated, but no new guidance has been issued.

As more people get closer to being fully vaccinated and there is community availability of the vaccine, employers will likely take a more active role in supporting vaccinations for employees. Increasing the numbers of those who are vaccinated provides benefits for the workplace. Companies evaluating such action should follow federal and state laws and guidance in drafting any such vaccination policy and consider obtaining legal counsel.

Jennifer Parent, a director at McLane Middleton, chairs the firm’s Litigation Department and is a member of its Employment Law Practice Group. She can be reached at 603-628-1360 or jennifer.parent@mclane.com.

Some legal concerns occur when a voluntary program is seen as coercive due to pressure exerted on employees to comply.