Steer Clear of Roadblocks to Mandating or Incentivizing Vaccines

Allen Smith, J.D. By Allen Smith, J.D. February 5, 2021
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someone preparing the COVID-19 vaccine

COVID-19 vaccines are giving many employers hope that business and the workplace can slowly return to normal. To help speed that return, they are considering requiring or encouraging workers to get the vaccine. That's allowed within certain limits, but there are employee relations hurdles and legal challenges in mandating or incentivizing vaccines.

The benefits of the vaccine are clear, as it protects most vaccinated people from contracting COVID-19 and promotes herd immunity, said Dr. Terry Layman, corporate medical director with Marathon Health in Indianapolis.

But before employers jump to requiring employees to get the shot, they should understand all the possible effects of that decision—both operational and cultural. For example, if an employer makes COVID-19 vaccinations mandatory and excludes people from the workplace who haven't gotten the shot, there may not be enough employees to keep running the business, noted Michael Oliver Eckard, an attorney with Ogletree Deakins in Charleston, S.C., and Atlanta.

Brian Pezza, an attorney with Lewis Rice in St. Louis, highlighted the morale issues that might materialize. "It is possible that, despite the toll the pandemic has taken on us all, some employees may be reluctant, or even hostile, to a requirement that they get the vaccine," he said. "This reluctance could create an employee engagement issue that some employers may not want to provoke. 

"But lost time due to COVID-19 has cost employers dearly," he continued, "and having a fully vaccinated workforce may yield benefits far outweighing any temporary anger employees might feel." 

Balancing the Risks

A mandated vaccine policy should be balanced with overall risk to the organization, consideration of particular job functions and the importance of the vaccine to the employer's operations, Layman said.

Companies may have a legal right to require employees to get vaccinated, but many companies would rather educate and incentivize employees first to encourage them to make the decision, he added.

Employers should also know that incentives may come with legal risks, said Charles Jellinek, an attorney with Bryan Cave Leighton Paisner in St. Louis.

Employers that are considering mandatory vaccines should ask if the legal risks flowing from mandates are worth it, said Karla Grossenbacher, an attorney with Seyfarth in Washington, D.C. Legal risks include litigation arising from the failure to make exceptions for those who object and potential workers' compensation liability for side effects, she noted. In addition, she asked, would that many more employees be vaccinated under a mandate than if vaccinations were voluntary?

The Equal Employment Opportunity Commission (EEOC) has stated that administration of a COVID-19 vaccination to an employee does not constitute a medical examination for the purposes of the Americans with Disabilities Act (ADA). But pre-screening vaccination questions may implicate the ADA's prohibition on disability-related inquiries and Title II of the Genetic Information Nondiscrimination Act. So if vaccines are required, the employer must show the screening inquiries are job-related and consistent with business necessity. An employer can meet this standard if the unvaccinated employee would pose a direct threat to the health or safety of himself or herself, or others.

In addition to workers' compensation laws and the ADA, laws that may come into play include the Occupational Safety and Health Act, which requires employers to provide employees with a safe workplace. Also, the National Labor Relations Act prevents employers from infringing upon workers' protected concerted activity, such as an effort to oppose mandatory vaccines, noted Jill Cohen, an attorney with Eckert Seamans in Lawrenceville, N.J. 

Another issue is whether employee time spent getting mandatory vaccines is compensable under wage and hour laws, noted Amy Traub, an attorney with BakerHostetler in New York City.

Also take into account state law, Traub cautioned, noting, for example, that Oregon prohibits certain health care providers from mandating that employees receive vaccines, unless otherwise required by state or federal law.

Who Should Get Vaccinated?

"Employers should carefully consider whether mandating the vaccine should be limited to certain employees, departments or locations," Cohen said. Employers can consider such factors as whether employees perform work in person, work with vulnerable populations, and are in close proximity to each other or the public.

Most states have implemented a vaccine distribution schedule that sets the prioritization of the vaccine, as its supply is limited. "Generally, the state vaccination plans prioritize essential workers such as health care workers, first responders, grocery store workers and public transit employees for vaccination," Traub said. The plans also prioritize individuals age 65 and over, residents of assisted living facilities and adults with underlying conditions.

Before implementing a mandatory program, employers should ensure that the program is narrowly tailored to address risks of COVID-19 in the workplace. As such, if an employer implements a mandatory program, the employer should require the vaccine only for employees who are onsite, Jellinek said. Exceptions to the mandate must be made for those requesting reasonable accommodations due to disabilities or religious beliefs.

"Employers should take a careful and realistic look at their operations and their workforce," said Matt Feery, an attorney with Much Shelist in Chicago. "Employers with manufacturing operations will have different needs and perhaps a different sense of urgency than employers whose employees have successfully worked remotely throughout the pandemic and can continue to do so."

[SHRM members-only resource: COVID-19 Vaccination Resources]

Incentives Concerns

If employers offer incentives to encourage employees to get vaccinated, employers should consider the tax consequences of such benefits and determine whether the incentives offered can be perceived as coercive due to high values, Traub said.

For employees who do not participate in the program because of religious beliefs, disability, or other characteristics protected by federal or state law, ensure that comparable benefits are available for those employees, Jellinek said. 

The Society for Human Resource Management is part of a coalition of employer groups asking the EEOC for guidance. These business leaders are seeking answers about whether incentives of more than minimal value are legal.

"I've heard some really thoughtful ideas for encouraging employees to get vaccinated," Pezza said. These include providing cash incentives, extra vacation time and time off to get their shots offsite.

"It remains to be seen whether these incentives will work to have a sufficient swath of the workforce vaccinated," he said. "I would encourage employers that are exploring vaccine incentives to leave the door open to possible mandates in the future, if employees don't take advantage of the perks upfront."

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