Can Employers Incentivize Employees to Get the COVID-19 Vaccine?
As vaccines become more readily available, one question at the forefront is whether employers can incentivize their employees to get a COVID-19 vaccine? The answer is yes, in most cases; however, the type and amount of incentive could implicate a variety of laws.
The biggest question in creating an incentive program is what to offer. The answer depends on whether the employer is administering the vaccine or contracting for its administration, or if the employee receives the vaccine from an unaffiliated third party.
1. Employer Vaccine Administration/Contracted Party: If the vaccine is being administered by the employer or a party with which the employer contracts to administer the vaccine, it could be considered a wellness program governed by the ADA (Americans with Disabilities Act). The ADA applies to employer-sponsored voluntary wellness programs that include a medical examination or disability-related inquiry. The program must be reasonably designed to promote health or prevent disease, not overly burdensome, and not a subterfuge for discrimination. The program cannot be a “gateway plan”, requiring employees to submit to a medical examination or inquiry to access an enhanced benefits package. The program must also offer reasonable accommodations to persons for whom it is medically inadvisable to participate. And participants must be provided with a notice informing them of why their information is being requested, how it will be used, and how it will be protected.
In addition, if such a program is created, the ADA and the GINA (Genetic Information Nondiscrimination Act) limit what employers can offer as an incentive, however, that limit is undefined. On January 7, 2021, proposed regulations under the ADA and GINA provided that a de minimis standard for incentives must be followed; examples included a water bottle or gift card of modest value, but it has since been withdrawn. It is likely that there will be limits to these incentives, and thus, employers should seek the advice of counsel before creating an incentive for vaccination.
2. Third Party Vaccination: If an employee receives the vaccine from a third-party of his/her choosing, the ADA and GINA incentive limits do not apply. An employer can ask for proof of vaccination without implicating ADA standards regarding medical inquiries of employees but asking additional questions, such as why an employee refuses to be vaccinated, could implicate the ADA. Further, employers will want to ensure that any records regarding vaccination are kept confidential.
After determining what to offer, employers must ensure the incentives are available to all employees. This could involve accommodating those employees who are unable to be vaccinated because of either a disability or a religious objection. Employers should also consider the impact of a vaccine incentive program on employee morale and whether vaccines are readily available to all employees.
