Can businesses require employees to get vaccinated? Now that the supply of COVID-19 vaccine is ramping up, businesses have one more pandemic problem to solve: what, if anything, should they do about employee vaccinations? It’s a question fraught with legal and ethical challenges and because this is all new, and the situation is rapidly evolving, there are no clear answers.
What is clear: as shots become more readily available, employers will have to balance their own feelings about the vaccine, the necessity of keeping employees safe, respecting issues related to privacy and employee rights and the law.
There are important questions about how to strongly recommend employees get vaccinated, including whether or not to offer incentives to employees.
Require Employees to Get Vaccinated or Advocate that they Get Vaccinated?
The Society for Human Resource Management (SHRM) conducted a survey of U.S. businesses in December 2020. Nearly two thirds said they planned to advocate that their employees get the vaccine but not require it. The other third was uncertain. And for good reason.
It’s very complex, and it can be very confusing.
That’s because there are numerous laws and government entities involved. OSHA for example, requires employers to maintain a workplace that is free of recognized hazards. The EEOC issued guidance on December 16, 2020 stating that employers can require workers to be vaccinated under certain circumstances. At the same time, the American with Disabilities Act (ADA) prohibits discrimination and requires “reasonable accommodation.” It also protects the privacy of each team member’s medical information. Then there’s Title VII, that may require accommodation of an employee’s sincerely-held religious beliefs or practices.
There are also state and local laws to consider, some of which protect certain groups, even those who may question the efficacy and safety of vaccines in general. To further complicate matters, there is even talk of casualty (workers compensation and liability) insurers requiring vaccinations as criteria for continued insurance coverage.
We have seen several employers offer financial incentives to their employees and the results have been positive. One client, who deals with a vulnerable population, provided a bonus of several hundred dollars to all of their employees. This particular client has been very proactive around COVID-19 issues—giving employees extra paid time off so they wouldn’t have to worry about using all of their time if they felt sick. Their rationale: keep employees safe in order to keep the population they serve safe.
We do anticipate that more companies will elect to provide employee incentives to take the COVID-19 vaccine.
The incentives question
Some large companies are moving ahead with incentives. For example, Amtrak is spending $3 million to encourage vaccinations, providing bonuses equal to two hours of pay along with paid time off for employees to get the shot during working hours. The company’s aim is to speed protection of its workforce and its passengers and restore confidence in rail travel, writes The Washington Post.
Incentives will work with some employees, according to a recent study by incentive solutions company Blackhawk Network. It found that four out of 10 respondents were unsure or do not plan to get the shot—but certain incentives could help. Not surprisingly, money was the top choice for the preferred incentive, with paid time off a distant second choice. One third of the respondents would complete the vaccination process for a $100 incentive or less. However, another third said money would have no influence on their decision.
If you are thinking of urging your employees to get vaccinated, know that there is some legal uncertainty around incentives. This month, the Society for Human Resource Management (SHRM) along with 14 other business groups asked the EEOC for guidance, asking if incentives of more than minimal value will be considered legally permissible.
Until the EEOC answers the incentives question and regulations are further developed from additional agencies, the grey area surrounding the question of “Can businesses require employees to get vaccinated?” will continue to remain. In the interim, here are three things to know, according to SHRM:
1. You can mandate that employees get the vaccine for now, if you make accommodations for employees with religious and disability issues.
2. You can encourage employees to get the vaccine without providing an incentive.
3. If you want to incentivize employees with something more than a minimal gift (think water bottle), you should consult with an employment attorney.
As with so many other things in this new COVID world, this situation will continue to evolve. NEMR, as your decisive HR advisor, is here to assist with any questions you have about your potential decisions related to the COVID vaccine with your workforce.