COVID vaccines and employers: A challenging relationship
It's critical that employers and benefits managers be familiar with the legal ramifications regarding vaccination mandates and accommodations.
In December 2020, vaccines from both Pfizer and Moderna received FDA emergency use authorizations to begin the fight against COVID-19, and vaccination programs are underway across the country. The Equal Employment Opportunity Commission acted swiftly in December, issuing guidance indicating that employers are generally permitted to require coronavirus vaccinations for employees.
Related: Vaccination coverage requirements for group health plans
However, that advice comes with a long list of stipulations, particularly regarding Title VII of the Civil Rights Act of 1964 and Americans with Disabilities Act protections. It is critical that employers and benefits managers be familiar with the legal ramifications regarding COVID-19 vaccination mandates and the accommodations necessary for those unable to be vaccinated.
What is the EEOC’s vaccination guidance?
The EEOC guidance indicates that employers can require COVID-19 vaccinations for employees as long as their policies conform with ADA disability and Title IV discrimination protections already in place, along with any other applicable workplace laws. In general, the new EEOC recommendation encourages employers to be mindful of the rules for accommodating those with medical concerns or religious objections. As the Society for Human Resource Management points out, employers with unionized employees may also need to reach an agreement with the union(s) involved before mandating vaccines.
ADA guidelines
While the ADA bars discrimination on the basis of disability or medical status, it does allow employers to implement a qualification standard, including “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a vaccine requirement conflicts with an employee’s disability, the employer must prove the unvaccinated employee reaches the threshold of “direct threat” and provide a reasonable accommodation, such as allowing said employee to work from home or take a leave of absence.
While the ADA prohibits employers from administering medical examinations, the EEOC does not equate the administration of a vaccine with an examination. However, legal experts warn that the vaccine’s necessary pre-screening questions may elicit disability information. Therefore, employers who choose to administer vaccines must prove that such pre-screening questions are “job-related and consistent with business necessity.” Or, they may decide to avoid the issue by making vaccinations voluntary or requiring the use of unrelated third-party providers.
Title VII regulations
Under Title VII guidelines, an employer must accommodate an employee’s sincerely held religious beliefs unless doing so causes an undue hardship on the business. The definition of religion is broad, so employers should typically assume a request for religious accommodation meets the standard of a sincerely held belief. If an accommodation for a religious exemption would cause more than a de minimis cost or burden, the employer would be permitted to exclude the employee from the workplace.
Are vaccine mandates and incentives equally problematic?
Even before the coronavirus vaccines gained approval for distribution, COVID-related workplace issues were already a legal hotbed for employers. This trend is expected to continue as more and more workers are already back at work and being asked to return in greater numbers. First and foremost, companies must consider whether the legal risks of any vaccine directive outweigh the benefits to the organization and the safety of its employees. While mandating COVID-19 vaccines comes with an unwieldy list of potential legal issues, businesses may garner the comprehensive vaccination level they seek by educating and incentivizing employees instead.
Some programs currently offered by major companies include:
- Preparing information and holding virtual town halls to address any vaccine questions.
- Providing paid time-off for the time taken to receive the vaccination.
- Offering cash bonuses for getting vaccinated.
- Giving additional paid time-off for any vaccine-related side effects.
That’s not to say that incentive programs don’t have their own legal ramifications. For example, the ADA forbids employers from pressuring employees to participate in wellness programs. Legal challenges in this arena have been an issue long before COVID-19 made itself known.
On Jan. 7, the EEOC proposed new guidelines for wellness programs that would limit the value of incentives employers may use to encourage employee participation, particularly those that track health data. Under the proposal, incentives that are of more than minimal value would be considered in violation of ADA and Genetic Information Nondiscrimination Act rules. The newly proposed ADA guidance states that “allowing too high of an incentive would make employees feel coerced to disclose protected medical information to receive a reward or avoid a penalty.”
On Jan. 20, the Biden administration halted the evaluation of the new ADA and GINA guidance until it can be reviewed by the newly installed EEOC chair, putting wellness incentive decisions into further limbo.
Seeking clarity, on Feb. 1, SHRM and 41 major business groups submitted a letter to the EEOC asking “the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act [ADA] and other laws enforced by the EEOC.” Signed by the U.S. Chamber of Commerce, the National Restaurant Association, the National Retail Federation and others, the letter encourages the EEOC “to define what qualifies as a permissible incentive as broadly as possible.”
What does this mean for benefits managers, brokers and consultants?
Benefits managers, brokers and consultants play a critical role in advising stakeholders on how to return workplaces to pre-pandemic normalcy, putting them on the front lines of the potential litigation minefield for both mandates and incentives.
Until the EEOC responds to the incentive issue specifically, many law firms, HR consultancies and benefits brokers advise caution. Further, some economists argue that the act of offering an incentive or reward to someone who is undecided may instead cast doubt on the vaccination itself. Several experiments show that test subjects equate being offered a payment to participate in an activity with the activity’s riskiness.
For now, employers might be best served by promoting factual information and positioning the vaccine itself as the reward. By implementing a comprehensive system for recording and investigating all types of workplace claims, such as Work Shield, employers put themselves in the best possible position to manage cases and avoid risk during and long after COVID-19.
Travis Foster is the chief legal officer at Work Shield.
Read more: