Federal and state laws permit employers to implement programs designed to encourage employees to get vaccines, including vaccinations for COVID-19. Vaccination incentive campaigns may be mandatory, voluntary and incentive based. Regulatory requirements make particular vaccination plan designs more appealing than others. Most of the currently available guidance and recommendations indicate that voluntary or incentive programs present fewer administrative burdens and compliance issues. However, information and rules relating to COVID-19 vaccination and response evolve constantly, so employers should continue to monitor new laws, regulations and guidance from the relevant federal and state authorities.

The current legal and regulatory framework permits employers to establish incentive programs that require employees to obtain vaccines.

In general, employers can encourage employees to get vaccines, including the COVID-19 vaccine. Current law permits employers to create employee vaccination programs that incentivize vaccination if the employer adheres to Equal Employment Opportunity Commission (EEOC) wellness program rules and specific exemption requirements. When incentivizing vaccinations, employers should follow the Center for Disease Control and Prevention’s (CDC’s) recent guidance on promoting vaccination in the workplace. The primary exemptions to consider include those exemption requests arising under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). The available guidance recommends that employers develop voluntary vaccination campaigns and employee incentive plans to promote employee vaccinations.

Employers implementing vaccination programs should follow the recommended guidance offered by the federal and state agencies.

The currently available CDC, Department of Labor (DOL) and EEOC (collectively “Agency” or “Agencies”) guidance advise employers that to maintain a permissible vaccine program, they must permit religious accommodation requests under Title VII and medical accommodation requests under the ADA. Some states and localities, e.g., California, have similar laws that place even more stringent requirements on employee vaccination plans. Below is some guidance adopted from relevant federal agencies relating to their general and COVID-specific mandatory employee vaccination programs.

  • The Title VII guidance says that if an employee attests that a “sincerely held religious belief” requires them not to get vaccinated, they are entitled to religious accommodation. Typically, personal or ethical objections are insufficient for an employee to be granted a religious exemption according to the federal rulings relating to religious accommodation cases. An employer may deny accommodation requests if it can be demonstrated that the accommodation would pose an “undue hardship” for the employer to meet an employee’s accommodation request.
  • The guidance relating to the ADA states that an employer must grant an employee medical accommodation should the employee establish that they have a covered disability. The guidance and cases pertaining to medical accommodations suggest that sensitivity to vaccines – including allergies, anxiety and chemical sensitivities – constitute a covered disability. If an employer decides to create a COVID-19 vaccine program, the employer should prepare reasonable alternatives for those that have disabilities that may prevent them from receiving a vaccine.
  • The State guidance from the federal Agency guidance instructs employers to contact or refer to the agency guidance of the state(s) in which they operate to ensure that its mandatory plan permits the required state-based exemptions to any mandatory vaccination program. Oregon, for example, has a webpage explaining to both workers and employers how an employer in the state can implement a compliant vaccination program.
Employers can use company communications to spur employees to get vaccinated.

Should an employer decide to create a communication campaign encouraging employee vaccination, it will need to develop company communications stressing the importance of getting vaccinations and where employees can obtain vaccinations. These communications may be a low-cost alternative to the other ways of promoting or incentivizing employee vaccinations discussed throughout this document. However, it may not yield the desired employee participation levels and requires input and collaboration between HR, management and communications teams. The CDC has a resource page and toolkit that employers can use to build vaccine plan communications.

Employers can implement different types of vaccine encouragement campaigns.

Voluntary vaccination campaigns are employer-sponsored employee vaccination programs that do not offer incentives. Such plans do not have significant compliance concerns. Such a program may present an employer with some logistical, administrative and budgetary issues. These plans can be as simple as offering time off for employees seeking or recovering from their vaccine. A vaccination leave policy may, by design, allow employees to receive vaccines “on the clock” or offer paid time off to employees when they schedule a COVID-19 vaccination at a local clinic, pharmacy or doctor’s office. Employers may also decide to host a vaccination clinic that offers onsite voluntary immunizations to employees as the CDC recommends for other respiratory illness vaccines. Employers should consult with labor and tax counsel to ensure that any voluntary vaccine policy complies with any relevant tax and leave laws.

Vaccination incentive campaigns can create a standalone wellness program or an add-on to an employer’s existing wellness plan.

Employers create an incentive program as an extension of their wellness program or a standalone wellness incentive plan. Rewards for participation in wellness programs can take many forms, from cash or cash equivalents (e.g., gift cards or gift certificates), to health plan-related rewards (e.g., reductions or waivers in employee cost-sharing features, such as premiums, copayments, deductibles or additional employer-provided benefits), to other noncash rewards (e.g., employee discounts or merchandise prizes). Penalties for nonparticipation in a wellness program usually take the form of financial penalties. When tying wellness participation to employment, state employment law issues may arise, which may or may not be preempted by the Employee Retirement Income Security Act (ERISA).

Employers should note that the vaccine plan must meet wellness plan requirements if an employer’s vaccine program ties incentives or penalties to its employee vaccination plans.

Providing an employee an incentive for getting vaccinated could be defined as a wellness program by the EEOC. In recent guidance, the EEOC stated that asking an employee whether they are vaccinated is not a disability-related inquiry. However, the pre-vaccination medical screening questions can include disability-related inquiries, making such a plan a wellness program. The EEOC requires that participation in an employer wellness program that includes disability-related inquiries be voluntary and employee incentives must meet prescribed dollar limits. That means an employer should evaluate whether the incentive chosen – cash/cash equivalent, health plan-related rewards or noncash rewards – meets the EEOC requirements. That includes the proposed EEOC wellness rules recently put on hold that set incentive amounts to a “de minimis” standard.

The current guidance says that employers may require employees to get vaccinations if employers allow certain exceptions and follow the relevant regulations.

Mandatory vaccination programs may cause compliance and administrative issues for employers. The EEOC updated its information guide on COVID-19 and the EEO laws on December 16, 2020. The EEOC indicated that it would release some updated guidance on implementing a COVID vaccination program. The Agencies recommend that companies, especially those operating in several locales, use voluntary and incentive plans to promote employee vaccinations. These campaigns typically avoid the compliance and administrative burdens associated with mandatory vaccination programs. Before making any decision on a vaccination or wellness program, employers should seek the advice of legal counsel.

 

See our related return-to-office client panel webinar materials, tools and resources here: Way to Wellness: Return-to-Office Protocols & Considerations

 

EPIC offers this material for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this document and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.

 

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Kevin Mathis

Compliance Manager – Atlanta, GA