A recent introduction of COVID-19 vaccines has generated hope that the end of the pandemic is near while simultaneously creating another variable for employers to consider in their pandemic strategy. The vaccines are released in phases based upon urgency of need and risk factors. The CDC recommended that the vaccine be offered to healthcare personnel and residents of long-term care facilities first. Due to several factors, the administration of the vaccine is far behind the expected rate promised upon introduction.
Despite this setback, employers have created policies on the new vaccinations for their employees and have addressed whether to require it or allow vaccination to be voluntary. Under EEOC regulations, employers can require their employees to get a COVID-19 vaccination as a condition of employment. Private employers can mandate vaccinations if they offer accommodations to workers with religious and medical conditions that would exempt them from receiving the vaccine.
Many employers have decided against a mandate for employees to be vaccinated and instead have focused on creative ways to encourage vaccination, including offering incentives. The incentives include cash, gift cards, or an extra day of paid time off. The incentives are paid upon an employees’ receipt of the second vaccine injection, which is administered three to four weeks after the initial dosage.
Recently, Dollar General announced a plan to grant extra pay for workers willing to get vaccinated. The discount retailer intends to compensate employees the equivalent of four hours pay for their participation. The extra pay is meant to offset potential travel time, mileage, and childcare expenses that employees will incur to get the vaccine. Trader Joes has also announced that it will offer an incentive to its employees who receive the vaccine, offering two hours pay per dose. Instacart Inc., the grocery-delivery service, announced that it would provide a $25 stipend for workers who get the COVID-19 vaccine.
The incentive may be an effective solution to motivate otherwise skeptical employees to get vaccinated, however, the incentives may raise unforeseen legal issues for employers. Recently, the EEOC issued proposed rules limiting the incentives an employer may offer to encourage participation in wellness programs. Under the proposed rules, incentives offered to employees to participate in “voluntary” exams may only have a de minimis value (i.e., a company branded water bottle or t-shirt). This limitation follows the rules promulgated for wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
Under the proposed rule, the wage-based incentives offered by Dollar General and Trader Joes would not be allowed. Although the EEOC rule has yet to be approved and published, the possibility of other proposed rules is something that employers need to be aware of. If an employer decides to incentivize receiving the vaccine, the incentive may have to comply with Federal law. Regardless of the vaccine policy an employer decides to implement, it requires prudent and thoughtful planning to reduce possible legal exposure.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19, please contact any member of our Firm at 585-730-4773.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC
 https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations.html  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?mkt_tok=eyJpIjoiTm1aaVpqQTJNekJqWmpFeSIsInQiOiI1M3VaaXpCaXN3RWVsaXRmalRoT2lNVVk2T1g5Q1Q1WjNaY2J2Z0ZjU1N1QlhjZWx0d2puVUtNMnhkQ2NZdkRRakkraUVDVUtVTlFzUERBY2hkRnBsbzBwM3F5K1RIUWNxbklERDRocmpcL1V0NXRWejdBNmNNcTlzdFh4OHlwbkgifQ%3D%3D  https://www.jdsupra.com/legalnews/may-employers-mandate-covid-19-vaccines-79371/  https://www.eeoc.gov/newsroom/eeoc-provides-proposed-wellness-rules-review