Some Employers Offer COVID-19 Vaccine Incentives Despite Lack of Guidance

As employers wrestle with whether to give employees incentives to get the COVID-19 vaccine, one thing is sure: Many employment attorneys are equally stumped. In fact, the lack of legal guidance about appropriate incentives likely is keeping some employers from moving ahead.

Recent Society for Human Resource Management (SHRM) research shows that 88 percent of employers either are unsure about whether they will offer incentives to encourage employees to get the vaccine or are not offering or planning to offer such incentives.

"Organization leaders, including HR professionals, are making decisions about employees returning to the worksite that will greatly affect their organizations and impact significant society issues," said SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP. "While 60 percent of organizations say they will not require the vaccination, I believe we will see employers strongly encourage vaccination in a broad range of enterprises and even consider offering employee incentives. Creating a safe workplace will be a collaborative effort between HR, business leaders and employees."

Some big employers have announced that they will encourage employees to get vaccinated, offering cash, paid time off or extra vacation time to help stop the spread of the coronavirus.

Cash Incentives

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Kroger announced on Feb. 5 that it will provide a one-time payment of $100 to all associates who receive the full manufacturer-recommended doses of the COVID-19 vaccine. "As we move into a new phase of the pandemic, we're increasing our investment to not only recognize our associates' contributions, but also encourage them to receive the COVID-19 vaccine as it becomes available to them to optimize their well-being as well as the community's," said Tim Massa, Kroger's chief people officer in Cincinnati.

Love's Travel Stops & Country Stores is paying employees $75 each to receive the COVID-19 vaccine.

"Our culture starts with respecting and taking care of each other, and we look for innovative ways of doing that," said Carl Martincich, Love's Travel Stops & Country Stores vice president of human resources and risk management in Oklahoma City.

Paid Leave

Amtrak is aiming to have all its employees vaccinated "since we believe the vaccine offers the best way to keep our employees safe and contribute to the wellness of local communities," said Olivia Irvin, an Amtrak PR manager in Oakland, Calif.

Amtrak is allowing excused absences for employees receiving vaccinations during their regularly scheduled work hours and paying employees an allowance equivalent to two hours of straight-time pay when they submit documentation of receiving the vaccine.

In addition, employees who miss work due to vaccine side effects will have that absence excused and pay protected for up to 48 hours after vaccination, Irvin said. "With appropriate documentation to medical services, we will also protect pay for employees who are unable to work more than 48 hours after vaccination," she noted.

Darden Restaurants will provide a total of two hours of pay for each dose of the vaccine—up to four hours of total pay for complete vaccination.

"Throughout the pandemic, we have remained committed to putting the health and safety of our team members and guests first," said Gene Lee, chairman and chief executive officer of the Orlando, Fla.-based company, which owns Olive Garden and LongHorn Steakhouse. "This is, and always will be, our top priority. The COVID-19 vaccine will be a critical tool in helping end this pandemic."

Aldi is covering all costs associated with vaccine administration and providing employees with two hours of pay for each dose they receive, as well as scheduling flexibility for salaried employees.

Other companies providing paid leave for COVID-19 vaccines include Chobani and Walmart.

Vacation Time for Salaried Workers

Knead Hospitality + Design restaurant company in Washington, D.C., is distinguishing between tipped, nontipped and salaried workers. Each employee who submits written documentation to his or her general manager that the employee has received all required doses of the COVID-19 vaccine will receive the following: 

• Tipped employees: A bonus of four hours of pay at regular minimum wage.
• Nontipped employees: A bonus of four hours of pay at the regular pay rate. 
• Salaried workers: A bonus day of paid time off (PTO).

Legal Uncertainties

SHRM is part of a coalition of employer groups asking the Equal Employment Opportunity Commission (EEOC) for guidance on incentives for vaccines. These business leaders are seeking answers about whether incentives of more than minimal value are legal.

While many employers want their employees to get vaccinated, "there are realistic hurdles to achieving universal vaccination," said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va.

The EEOC has advised that employers may need to reasonably accommodate people with disabilities who would be at risk if they were vaccinated by exempting them from any mandatory vaccination policy that an employer may institute. Similarly, an employer may need to accommodate an employee's sincerely held religious belief that opposes vaccinations.

"For those employees who are simply fearful or hesitant about being vaccinated, employer incentives may come into play in order to encourage employees voluntarily to take the time and make the effort to be vaccinated," Mook said. "That's why employers, especially those whose employees engage with the public, have instituted incentives for vaccination. Unfortunately, at the present time, there are a number of legal gray areas as to the legality of an employer providing incentives."

First, as mentioned above, some employees—for health or religious reasons—may decline to be vaccinated. Therefore, if an employer is providing incentives for employees who do get vaccinated, is it discriminatory not to provide the same benefit to employees who for health or religious reasons cannot get the vaccine? The answer to that question is still unknown, Mook said.

Similarly, if an employer provides incentives for employees to get vaccinated as part of an employer's wellness plan or program, such incentives may run afoul of the Americans with Disabilities Act. Recently, the EEOC proposed wellness plan regulations that would require an employer to provide only minimal or de minimis incentives for employees to participate in a wellness plan. Tom Spiggle, an attorney with The Spiggle Law Firm in Arlington, Va., said incentives should be de minimis so they aren't coercive.

Under the EEOC's proposal, even a gift card of $100 would be more than de minimis. But the proposal has been put on pause while the agency considers possible next steps.

"Employers have asked the EEOC to issue guidance in this gray area of the law," Mook said. "When and if the EEOC will do so presently is unknown."

He added, "Given this legal uncertainty, I think the best way for employers to proceed is to provide an incentive such as paid time off that roughly mirrors the amount of time that an employee has to take in getting a COVID-19 vaccine shot. That's why we have seen many larger employers provide from two to four hours of PTO to those employees who get the COVID-19 vaccine."