VACCINATION INCENTIVES: DO THE RISKS OUTWEIGH THE BENEFITS?

The Centers for Disease Control has asked employers to encourage vaccinations for years, saying “Making annual flu vaccinations part of your workplace wellness program offers many benefits to you and your employees”.  With the COVID-19 Pandemic, the usually listed benefits of promoting vaccinations (reduced missed work, increased morale, etc.) are magnified.  With that in mind, a number of companies – including Dollar General, Trader Joe’s, Aldi, and Instacart – have announced an intention to provide incentives to employees to encourage them to be vaccinated.

WHAT ARE SOME OF THE INCENTIVE’S BEING PROVIDED?

  • Aldi is offering employees compensation for getting vaccinated, saying it would provide workers with two hours of pay for each of the two vaccine doses. “Providing accommodations so employees can receive this critical vaccine is one more way we can support them and eliminate the need to choose between earning their wages and protecting their well-being,” said Jason Hart, CEO of Aldi U.S., in a statement.
  • Trader Joe’s will also give employees two hours of pay per dose for getting the vaccine, plus they are shifting around schedules to make sure employees have time to get vaccinated.
  • Dollar General will give employees the equivalent of four hours of pay if they get the vaccine. We do not want our employees to have to choose between receiving a vaccine or coming to work,” the company said.
  • Instacart is offering a $25 stipend for eligible workers and contractors. As states and provinces begin their phased vaccine rollouts, eligible shoppers will receive a $25 Vaccine Support Stipend “With COVID-19 cases continuing to rise across the country, we’re taking proactive steps to advocate that government agencies recognize Instacart shoppers as critical essential workers who deserve early access to vaccines,” said Instacart CEO and founder Apoorva Mehta in a statement. “Our goal with the introduction of our new Vaccine Support Stipend is to ensure that, when the time comes, Instacart shoppers don’t have to choose between earning income as an essential service provider or getting vaccinated.”

BIG COMPANIES ARE NOT THE ONLY ONES PROVIDING INCENTIVES, SMALL BUSINESSES ARE ALSO JUMPING ONBOARD.

  • Forbes reported that John Ross, the CEO of Test Prep Insight, an online education company with 10 employees, is giving employees the day off after they get their second dose of the vaccine, plus the two following days off paid, regardless of whether they actually have a reaction.  Also, after his employees receive their second shot, the company will give each of them a $100 gift card for Starbucks, Amazon or REI. Then, after all the workers have received the vaccine, “I will take them all out to dinner at a nice steakhouse, where I [will] pick up the tab. They can order whatever they want—[appetizers], wine, surf and turf—I don’t care. I am hoping this last incentive creates some peer pressure amongst employees, as I really want them all to get the vaccine.”
  • reported that WikiLawn, a lawn mowing and landscaping company that connects clients with gig workers, says he’s offering a flat cash bonus of $500 to employees who get both vaccine doses and can provide proof they’ve done so. The company is also covering costs associated with getting a vaccine, such as paying for child care in the event parents can’t spare the time to get the vaccine.
  • Inc also reported that DebtHammer, a personal finance publication, is offering $200 and some additional paid time off as a bonus.  And Gadget Review, a technology and lifestyle publication, will give employees who get the vaccine an extra week of paid vacation, effective as soon as they finish both doses.

WHAT ARE THE RISKS OF PROVIDING INCENTIVES?

The current state of rules surrounding incentive programs for vaccinations is unclear.  The Equal Employment Opportunity Commission (EEOC) has been grappling with employer-paid incentives for participating in wellness activities, and it’s unclear whether those activities include receiving vaccinations.  While the EEOC issued regulations on this topic in 2016, AARP filed a legal challenge and on January 1, 2019 the regulations were vacated.  At that time, the EEOC indicated that the new rule would not likely be ready until 2021… and then came COVID-19.  So here we are in 2021, dealing with a global pandemic and new vaccination programs just now rolling out. What are businesses to do when they are relying on vaccinations to allow them to return to “normal” operations?

On Jan. 7, the EEOC released a set of proposed rules related to wellness programs that track employees’ health data.  The proposed rules say that employers may not require employees to participate; may not deny coverage under any of its group health plans or particular benefits packages within a group health plan; generally may not limit the extent of such coverage; and may not take any other adverse action against employees who decline to participate in an employee health program or fail to achieve certain health outcomes. Additionally, a wellness program that asks participants to provide medical information must not impose any condition that would adversely affect the terms, conditions, or privileges of employment of any employee who does not want to participate.  Essentially, this rule states employers generally may offer no more than de minimis incentives (e.g, a water bottle or gift card of modest value) to encourage employees to take part in a wellness program that includes disability-related inquiries and medical examinations.

IF YOU ARE NOT TRACKING EMPLOYEE’S HEALTH DATA, WHAT THEN? 

That’s the big question.  In a Feb. 1 letter, SHRM and 41 other business groups asked the EEOC to clarify “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.” The ADA prohibits employers from coercing employees to participate in wellness activities.

WHAT ARE THE RISKS ASSOCIATED WITH PROVIDING VACCINATION INCENTIVES? 

If you are considering implementing incentive programs, even small programs like a $25 gift card for vaccinated employees, be sure you are fully aware of the risks before you launch the program.

Lisa Coppola, managing partner of The Coppola Firm in New York State, said “The employee wellness programs litigation of the last decade informs us that incentivizing personal healthcare decisions is a risky proposition for employers. It’s very clear under the law that an employee cannot be demoted or otherwise prejudiced if they decline to be vaccinated. As a result, then, providing incentives for COVID-19 vaccines may walk an employer into a discrimination-related claim.”

What should you consider when looking into incentive programs? Trisha Barita, Managing Attorney with Barita Law Firm in Houston, Texas says “When considering incentivizing employees to get the vaccine, employers should be careful because loss of a benefit could be considered an adverse action against those who truly have a legally protected reason for not getting the vaccine such as for a disability or sincerely held religious belief.”

Like many employment policy related pitfalls, as the saying goes, no good deed goes unpunished.  So proceed with caution until the EEOC gives clear guidance on this issue.

Should you have any questions about vaccinations and incentive policies for your business or would like to schedule an initial consultation about another matter, please contact Navigant Law Group, LLC at (847) 253-8800 or email us at info@navigantlaw.com.

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