With increase in infections from Delta COVID variant among the unvaccinated and the anticipated return to in-office work, employers are considering options to increase the percentage of fully vaccinated employees in the workforce. These include mandatory vaccine requirements and incentive programs to increase the number of employees that are fully vaccinated. Guidance from the EEOC provides some parameters for employer considering these options.
Employers Can Require COVID Vaccinations as a Condition of Employment
In Texas, employers can generally require that employees be fully vaccinated against COVID as a mandatory condition of employment. Two exceptions apply to this general rule. Where employees have religious objections to vaccinations or have a disability that makes the vaccination potentially unsafe (e.g., the immunocompromised or pregnant employees), employers have to provide reasonable accommodation to those barriers to vaccination. Reasonable accommodation might include permitting or requiring wearing face masks, social distancing in the workplace, a modified work schedule, periodic COVID-19 testing, remote work, and reassignment.
Many employers have refrained from making fully vaccinated status a mandatory condition of employment and have instead offered encouragement and incentives to get workers and their families to voluntarily become vaccinated.
Employer Can Offer Incentives to Encourage Vaccinations
The EEOC has clarified that employers can provide incentives to employees to become vaccinated against COVID without violating the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act. The guidance has several key takeaways.
First, asking employees about their vaccination status is not a medical examination. Second, employers can provide incentives to encourage employees and their family members to become vaccinated. What is a permissible incentive depends on whether the vaccination program is an employer-sponsored program or voluntary incentive to be vaccinated by a third party in the community such as the employee’s healthcare provider, pharmacy or public clinic.
If the employer incentives are offered in connection with a program offering voluntary vaccinations administered by the employer or its agent, the incentive must be not be so substantial as to be coercive. The EEOC explains that “because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.” If the incentive is not offered in connection with an employer sponsored program and merely offers employees an incentive to provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider, the limitations on the significance of the incentive do not apply.”
Common Incentives Offered by Private Employers
Some of the most common incentives and encouragement being offered by employers include:
- Communication from the company educating employees on the benefits of vaccinations and encouraging vaccination;
- Relaxed rules for the fully vaccinated (e.g., no mask wearing);
- Offering PTO to get vaccinated or recover from side effects of vaccination;
- Cash payment, gift cards or prizes (if the employer is providing vaccines on-site or through a contract with third parties, the incentive must be very small –e.g., t-shirt or water bottle –otherwise few limits);
- Contribution to a flexible spending account (if the company has one)
The EEOC publication “What you Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws is attached here.