Stephen Scott

After years of marriage, I’ve learned one thing: binary choices are almost always better. For example, the question “Do you want pizza, Thai, BBQ or Mexican?” will result in the reply “I don’t care,” when we all know that is not true. Conversely, the question “Do you want Mexican or BBQ?” will reveal the dinner my wife truly desires.

Fortunately for employers, the Equal Employment Opportunity Commission just gave them a binary choice in regard to incentivizing vaccines, by drawing a key distinction based on who administers the shot.

  • If employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department or other health care provider in the community, then the employer can offer them any incentive it would like with no apparent limitations.
  • If an organization (or an entity acting on the organization’s behalf) administers the vaccine, it can still offer incentives – but they cannot be so substantial in value as to be considered coercive.

Whichever path an employer chooses, there are several other considerations to keep in mind when offering vaccination incentives based on voluntary inoculations: 1, accommodations; 2, confidentiality; 3, family members; and 4, what to offer.

Accommodations

Some employees may have legitimate medical or religious reasons not to get vaccinated, and failure to provide them with the same types of incentives could lead to claims under the Americans with Disabilities Act (ADA) or Title VII. Employers will need to consider offering alternative means by which employees can earn an incentive if they cannot be vaccinated due to a disability or sincerely held religious belief. Alternative ways to earn the incentive might be watching a workplace COVID-19 safety video or reviewing Centers for Disease Control and Prevention literature on mitigating the spread of COVID-19 in the workforce.

Confidentiality

After gathering information from employees about whether they have been vaccinated, an employer must maintain confidentiality. Records should be maintained as any others that are medical-related (in a separate file, accessible to only those who need to know, etc.), in compliance with all other privacy rules.

Family members

While an employer can offer an incentive to employees to provide documentation or other confirmation from a third party not acting on its behalf that their family members have been vaccinated, the EEOC confirmed that an employer may not offer incentives to its employees in return for their family members getting vaccinated by the organization or its agent. This would be considered a violation of the Genetic Information Nondiscrimination Act (GINA) Title II health and genetic services provision. Asking pre-screening medical questions would lead to an employer receiving genetic information in the form of family medical history of the employee, and GINA regulations prohibit employers from providing incentives in exchange for genetic information. However, an employer can still offer an employee’s family member the opportunity to be vaccinated by the organization or its agent if certain steps are taken to ensure GINA compliance.

Possible incentives

Sometimes it is easiest to follow the crowd and not make waves. This is the stance many employers are taking when it comes to incentives for vaccines. With that you might find comfort knowing that employers’ two most common incentive options include cash/gifts (38 percent) and paid time off (30 percent). This is according to an FP Flash Survey, which earlier this year found that more than one in five employers were providing vaccine incentives. That number is bound to rise given that close to half of all respondents (43 percent) said they were unsure about whether to offer some form of incentive. Many commented that the then-current legal uncertainty fueled their hesitancy.

  • Cash/gifts. When it comes to those considering cash/gifts, about a quarter of respondents (24 percent) said they will provide compensation worth over $100, while a similar number (22 percent) will consider an amount under $100. The remainder of employers are either considering nominal company swag (6 percent will provide company-branded merchandise such as t-shirts or water bottles, or gift cards to the company store) or are unsure of what kind of gift or how much cash they will give (48 percent).

One of the more creative cash/gifts incentives offered by several respondents was a company raffle, whereby those choosing to get inoculated will be entered into a contest to win a prize such as $1,000, an Apple watch or some other luxury item.

  • Paid time off. As for those employers weighing whether to provide employees with paid time off, there is a split between providing four hours or less (11 percent) or a full day off (11 percent). A very small percentage (2 percent) was considering an offer of more than one day off. However, 76 percent of employers considering the PTO option were unsure how much time off they would provide.

I will continue to monitor developments related to the COVID-19 vaccines and related workplace questions that arise. That said, for employers who fall into category 1, congratulations, the EEOC recently provided what is likely the first definitive guidance you’ve received over the past year. For employers who fall into category 2 (or have concerns related to the definition of agency), it’s a sadly more gray area. Regardless, when it comes to vaccine incentives, always be mindful of: 1, accommodations; 2, confidentiality; and 3, the limitations on who can receive an incentive.

Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.