As the vaccine has become available to a wider range of individuals across the world, employers are making a big push to make sure their employees and customers as safe as possible in the workplace.  Recently, large employers, such as AutoZone and Lidl, announced they would be providing cash incentives, up to $200, to employees who provide proof that they have been vaccinated against COVID-19.

The EEOC has recently announced that administration of a vaccine on its own, does not constitute a medical examination, and that employers are not prohibited from requiring employees to receive the vaccine when it is finally approved by the FDA if they are willing to provide reasonable accommodation to employees who cannot not take the vaccine for religious reasons or due to a disability.

However, while employers have been given the “green light” with encouraging employees to be vaccinated once it comes available, employers need to be wary of incentives offered to employees which might push them out of compliance with existing law.  Recently proposed regulations on incentives for employee participation in employee wellness programs have limited benefits to de minimis levels.  However, the process of having those new regulations approved has recently stalled with the new presidential administration.  It is yet to be seen what the new administration’s view on how small an incentive for voluntary participating in a wellness program should be to maintain its “voluntary” status.  With a pro-employee administration, it is likely it will do everything it can to keep employers from coercing their employees into participating in a vaccine program, despite its goals on getting all Americans vaccinated by July of 2021.

All of this puts employers in an exceedingly difficult position – does one simply encourage employees to get vaccinated, and hope for the best, or provide a carrot out for the employees to incentivize their participation?  And if you choose to provide an incentive, how big should it be to create change for employees, yet not seem coercive?

Many employers have felt comfortable providing time off for employees to get vaccinated, as well as providing COVID pay for employees recovering from any side effects.  Others feel that providing additional compensation – up to a day’s wages for some – will not make the run afoul of the law.  We can be sure of one thing – there will be lawsuits in the months and years to come challenging all decisions made by employers regarding vaccination.

There are many things to consider for employers when it comes to getting employees vaccinated.  It is important that you consult with your legal counsel prior to making any major decisions on vaccine programs.  If you, or your organization need assistance determining which route is best for your organization, contact the Wiley Law Office, for legal advice that works.