Right now, a surprising number of eligible workers are declining to be vaccinated, with a similar percentage indicating that they will refuse once they become eligible. Depending upon whose numbers you believe, approximately one-half of the health care workers and first responders eligible to receive the vaccine have indicated that they will not do so. This is leading many employers to consider whether or not they should require or incentivize their workers to take the vaccine when it becomes widely available. There are a few things to keep in mind if you are considering doing so.
ADA/Title VII Right now, you CAN require your employees to get the vaccine. However, you must accommodate a disabled employee who is unable to take the vaccine (ADA) as well as an employee to objects to being vaccinated due to sincerely held religious beliefs (Title VII). If either the ADA or Title VII applies to your situation, you may not be able to force the employee be accept the vaccine. Rather, you might accommodate the employee by allowing her to work remotely or offer her an alternate schedule that does not require as much co-worker and client interaction.
The EEOC has already stated that getting the COVID-19 vaccine is not a medical examination, but questions asked in the vaccination process may well seek medical information in violation of the ADA. This information should remain with the vaccine administrator and not be provided to the employer.
FLSA You must consider if the time spent by your workers being vaccinated is compensable time under the FLSA. If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so. You can count on plaintiff’s lawyers challenging this in the form of FLSA class-actions. (Yet another reason to include an Alternate Dispute Resolution process disavowing any class or collective actions in your Handbook, but that is an issue for another article.)
Workers Compensation/Civil Liability One of the primary concerns of employers is that they may open themselves to workers compensation and civil liability claims if an employee suffers an adverse reaction due to the vaccine. We obviously do not have sufficient law at this point to say with certainty whether or not these types of claims will succeed, but you can rest assured that employees will attempt to make claims under one or both theories.
“Voluntary wellness program” Many employers are considering offering employees come sort of incentive to encourage them to be vaccinated. Employers should carefully consider the ramifications of each type of incentive. A cash reward could be constitute a non-discretionary bonus that must be included in a non-exempt employee’s regular rate of pay for the period in which it was earned. In addition, employers must consider whether or not offering an incentive would constitute a “voluntary wellness program” that might be prohibited by the EEOC guidelines. (Keep in mind that last month the EEOC withdrew its proposed Rule that would have made it easier and safer to implement such a voluntary wellness program.)
Bottom line: employers should carefully consider the risks and benefits of requiring or incentivizing employees to take the COVID-19 vaccine before they do so.