By: Jonathan Landesman and Hope Steidle Kildea
Two attorneys weigh in on mandatory and incentive-based employer policies for COVID vaccinations.
For months now, employer COVID-19 vaccination programs have been the subject of much speculation and debate.
Most of this discussion has focused on two types of employer policies: vaccination mandates and vaccination incentive programs. Vaccination mandates, on the one hand, impose an across-the-board vaccination requirement upon all employees. Vaccination incentive programs, on the other hand, are designed to encourage vaccination by offering rewards to vaccinated employees. Generally speaking, both types of policies are legal, but they are also subject to exemptions and limitations.
Before implementing a mandatory vaccination policy or vaccination incentive program, employers should be aware of restrictions imposed by employment discrimination laws and consider the labor relations issues, administrative costs, and liability risks associated with such policies.
Equal Employment Opportunity Laws
The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) place restrictions on an employer’s ability to implement “blanket” vaccination policies for all employees. More specifically, under the ADA, an employer may need to exempt employees from a mandatory vaccination policy, where the employees have pre-existing medical conditions that would prevent them from being vaccinated. Additionally, under Title VII, an employer may need to exempt employees with sincerely held religious beliefs that are offended by vaccination. These situations must be addressed on a case-by-case basis.
In order to comply with the ADA and Title VII, employers adopting vaccination incentive programs may need to provide employees who refuse vaccination due to a medical condition or sincerely held religious belief with an alternative method of qualifying for the incentive offered. Alternative qualification methods can include: requiring the employee to undergo weekly polymerase chain reaction (PCR) tests, wear a mask and social distance while on business premises, and self-administer daily temperature checks.
Protecting Employee Medical and Genetic Information
In addition to the equal employment opportunity laws discussed above, employers should be aware of the additional legal implications resulting from the pre-vaccine screening used to determine if an individual can receive the COVID vaccine. Under the ADA, employer inquiries that are reasonably likely to solicit information about an employee’s disability must be “job-related and consistent with business necessity.” The Equal Employment Opportunity Commission (EEOC) has advised that the pre-vaccine screening for COVID vaccines qualify as a disability inquiry under the ADA. As a result, employers who administer pre-vaccine screenings to employees, or who contract with a health care provider to do so, should be prepared to show that all disability inquiries meet the ADA’s “business necessity standard” for their business.
Employers may choose to remove themselves from the pre-screening process by instructing employees to get vaccinated by their personal health care provider or local pharmacy. In order to avoid implicating the ADA’s “business necessity” standard, employers should warn their employees not to provide any medical information when submitting their proof of vaccination.
Similarly, The Genetic Information Non-Disclosure Act (GINA) prohibits employers from requesting medical information about an employee’s genetic information, with narrow exceptions. Because it remains unclear whether pre-vaccine screenings require disclosure of genetic information, the EEOC has advised employers to refrain from administering vaccines and instead request proof of employee vaccination. The EEOC has further advised that, as long as employees are warned not to submit genetic information, any subsequent disclosure to the employer is considered inadvertent and does not impose liability under GINA.
Although employers are generally free to encourage employees to get vaccinated, there may be limits on the value of incentives employers can offer. The issue turns on whether the EEOC decides to treat vaccination incentives as employee wellness programs, which are subject to voluntariness requirements under the ADA and GINA. Under the Trump Administration, the EEOC issued a proposed rule limiting the value of employer incentives for certain wellness programs to those of a de minimis value, such as a water bottle or a sticker. The EEOC has since withdrawn the proposed rule as part of the Biden Administration’s regulatory freeze. Without any remaining regulatory guidance on the issue, it is unclear what, if any, limit applies to wellness program incentives.
Employers who choose to implement vaccination policies should anticipate a flood of exemption requests from employees covered under the ADA or Title VII, as well as those with safety or ethical objections to vaccination. The time and energy associated with processing these requests and training human resources personnel to do so may be substantial. Employers should also consider liability risks associated with a vaccine policy, including liability under the ADA and Title VII for potentially mishandled exemption requests and liability for Workers’ Compensation claims based on adverse reactions to an employer-mandated vaccination.
Additionally, employers with union-represented employees face additional legal hurdles under federal labor law. These employers, or the associations to whom they have assigned their bargaining rights, will generally be required to notify and bargain with union representatives before implementing vaccination policies.
Ultimately, it is up to every employer to decide what policy is right for their business and for the safety and well-being of their employees. Should you have any questions about vaccination policies or any other issues related to the COVID-19 pandemic and your workplace, please do not hesitate to contact either of us.