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We Want Our Employees to Get the COVID19 Vaccine. Now What?

The following article does NOT constitute legal advice and should not be used as such. It is for educational purposes only. Readers should retain legal counsel to obtain definitive answers.

Now that the Biden Administration is requiring employers with 100 or more employees to mandate the COVID19 vaccine or conduct weekly employee testing, more employers are likely to opt to mandate the COVID19 vaccine. If you are among the growing trend of employers considering mandating or at least incentivizing the COVID19 vaccine, you are certainly not alone. Even before the Biden Administration mandate, a recent survey indicated that more than half of US companies are planning COVID19 vaccine mandates in the workplace by the end of 2021. Almost 25% of those wanted to make COVID19 vaccination a condition of employment. The Biden mandate will further solidify those plans and embolden other employers to mandate the COVID19 vaccine, even if the Biden mandate is legally challenged.

Companies that are not subject to the Biden mandate, such as those with fewer than 100 employees, may consider offering financial incentives to employees who receive the COVID19 vaccine. See id.

Offering incentives or requiring employees to receive the COVID19 vaccine raises many legal issues, some of which were discussed in previous blog posts. Employees who feel forced to get the COVID19 vaccine, whether through an actual mandate or an incentive that feels more like coercion are likely to raise concerns relating to underlying health conditions, religious beliefs, violations of privacy or just plain skepticism regarding the COVID19 vaccine.

Employers should prepare for employee pushback when it comes to the COVID19 vaccine. One way employers can prepare is to create policies and procedures that all employees must follow when it comes to the COVID19 vaccine. Depending on which direction an employer wants to go with regard to the vaccine, here are some potential policies and procedures that an employer may want to create and implement before announcing any action with regard to the vaccine:

  1. Mandatory Vaccination Policy. This policy should serve as a notice to employees about the employer’s requirement that all employees receive the COVID19 vaccine. It should also serve as instructions on how the employees can get the vaccine and the deadline by which they should get the vaccine. According to the EEOC, employers that choose to offer the COVID19 vaccine at the worksite (even if through a vendor) will implicate the Americans with Disabilities Act (ADA) because the questions that must be asked in advance of administering the vaccine are disability-related questions. Therefore, to comply with the ADA, employers can only ask disability-related questions if those questions are “job related and consistent with business necessity.” See id, Q/A K.7.

    The policy should offer reasonable accommodations to employees who are unable to get the vaccine because of an underlying medical condition, sincerely held religious belief or any other right protected by law. A form that allows employees to claim an exemption from the vaccine requirement should accompany the notice regarding the vaccine mandate.
  2. Premium-based Vaccination Incentive Policy. Employers that wish to add a surcharge to an employee’s health insurance premium if they have not been vaccinated against COVID19 should create a policy that explains the surcharge. Because the Health Insurance Portability and Accountability Act (HIPAA) forbids premium differentials based on health status except if such differentials are part of a compliant wellness program, the policy adding the surcharge should comply with the five elements of a health contingent wellness program. Those five elements are:
    1. Employees must qualify for the reward at least once per year.
    2. The total reward may not exceed 30% of the total cost of coverage.
    3. The wellness program must be reasonably designed to promote health or prevent disease.
    4. Employer must offer a reasonable alternative standard to earn the reward.
    5. Employer must disclose the availability of the reasonable alternative standard to employees.

    So, employers wishing to incentive the vaccine through their group health plan should allow employees who are unable to get the vaccine because of underlying medical issues to avoid the surcharge by doing something other than getting the vaccine. The same is true for employees who assert other legally protected rights, such as a sincerely held religious belief. The policy should offer employees help to find COVID19 vaccine locations and to find other ways to avoid the surcharge if they meet the criteria in the policy.
  3. Vaccine Incentive Policy for All Employees Regardless of Group Health Plan Status. As noted above, if an employer offers the COVID19 vaccine directly, it will inevitably be asking disability-related questions, implicating compliance with the ADA. The ADA requires disability related questions to be job related and consistent with business necessity, or as part of a voluntary wellness program. Many employers are likely to weave into their existing workplace wellness programs a COVID19 vaccine component. Offering an incentive to employees to answer disability-related inquiries as part of a COVID19 vaccine pre-screen can undermine the voluntary nature of the inquiry.

    To avoid ADA issues, an easy solution is for employers to merely incentivize the COVID19 vaccine by asking employees to use a third-party provider, such as their physician or pharmacy. That way, someone else other than the employer is asking the disability-related COVID19 screening questions. The employer then asks employees to show proof of vaccination only, which the EEOC has stated does not implicate the ADA. See Q/A K.9. Policies that address company-wide incentives should incorporate these legal concepts so that the employer can stay compliant.

Employers interested in creating any of the above COVID19 vaccine policies should seek legal counsel. The Center for Health and Wellness Law, LLC is a good legal resource for such policies.

Barbara Zabawa

Barbara J. Zabawa

President of the Center for Health and Wellness Law, LLC

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