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3 Ways To Ensure Vaccine Incentives Abide By Anti-Bias Laws

By Anne Cullen · 2021-02-03 18:49:28 -0500

More companies are offering perks to encourage workers to get vaccinated against the novel coronavirus, but experts say these incentive programs can land employers on the wrong side of anti-discrimination statutes, potentially putting them at odds with the federal government and workers who won't get the shot.

Major corporations such as Trader Joe's, Lidl, Aldi, Amtrak and others have rolled out programs to reward employees who get vaccinated, which employment experts agree is generally a good idea to protect their workforce and the public.

But they said company leaders would be wise to limit the value of the rewards they're handing vaccinated workers or they could risk landing in the crosshairs of the U.S. Equal Employment Opportunity Commission, as the workplace bias watchdog is looking to curb the incentives allowed in corporate wellness programs. Doling out vaccine bonuses could also draw discrimination claims from disabled or religious workers who can't or won't partake.

"There could be an argument that providing bonuses for employees who get vaccinated potentially is discriminatory for those who have health conditions that prevent them from safely getting vaccinated, or it might be viewed as discriminatory against employees where vaccination does not comport with their religious beliefs," said Americans with Disabilities Act expert Jonathan Mook of DiMuroGinsberg PC.

Despite a dearth of clear guidance from the EEOC, experts said there still are few ways employers can hedge their bias liability when they dish out rewards to vaccinated employees.

Keep the Rewards Small 

Experts said it's possible corporate COVID-19 vaccination programs could be regulated by the EEOC under the same framework the agency uses to handle workplace wellness programs, and a rule the regulator is working on would cap what employers can offer workers for taking part in these initiatives.

The proposal mandates employers only offer de minimis incentives, like a water bottle or a modest gift card, to draw workers into these company-sponsored health initiatives when those programs require them to hand over medical information.

The EEOC has an interest in curbing these rewards because the ADA — which prohibits bias against disabled individuals — mandates workplace health initiatives be voluntary if they solicit medical details from participants, like the result of a health screening or someone's medical history.

Weighty prizes or penalties can essentially render these programs involuntary, forcing an employee into joining up and handing over sensitive medical data and violating the ADA.

If the EEOC regulates a vaccination program the same way, big corporations that are doling out hefty vaccine incentives could find themselves in hot water.

While some have stuck to moderate rewards for their vaccine programs — Aldi, Trader Joe's and Amtrak are offering team members two hours of pay for each dose they receive, and Dollar General is offering its frontline hourly workers four hours of regular pay — others are taking it a step further.

Meat processors JBS USA and Pilgrim's Pride Corp. are providing a $100 vaccine incentive bonus, and discount supermarket chain Lidl has promised to cut each employee a $200 check after they get vaccinated.

"With the EEOC's proposed wellness regulations, a $100 bonus is going to be more than a minimal incentive," Mook said. "So it could run afoul of the ADA's requirements pertaining to an employer's wellness program."

Rewards of this caliber can put businesses on shaky legal ground, not only by bucking the de minimis standard, but experts said they also could spark bias claims from workers who are steering clear of the vaccine because of their disability or faith.

"When the incentives are more than de minimis, then somebody who cannot access it has a claim that they are not being offered equivalent terms and conditions and privileges of employment," said Claudia Center, the legal director of the Disability Rights Education & Defense Fund, or DREDF.

A gift card of up to $50 or some paid time off is likely aboveboard, Center explained, but she said companies going beyond that may face trouble.

"I think $200 is a bad idea," Center said.

FisherBroyles LLP partner and employment counsel Amy Epstein Gluck agreed, noting that employers could be inviting legal risk by offering bigger cash rewards.

"If you have a workplace where you have people who can't get the vaccine because of a disability or a sincerely held religious belief, then there is that risk that offering that $200 incentive could poke that bear," she said.

A coalition of dozens of business groups, including the U.S. Chamber of Commercefired off a letter this week urging the EEOC to consider coronavirus vaccine programs as separate from the general workplace health activities it regulates. The coalition insisted "the paramount needs of the current crisis can be distinguished from wellness programs."

Agency spokesperson Jim Ryan told Law360 on Wednesday that the EEOC "strives to provide timely and clear guidance," and they "appreciate input from all stakeholders and will review the letter carefully." When the wellness incentive cap proposal was unveiled early last month, Ryan said the agency didn't plan to speculate on the impact the draft could have on workplace vaccination programs.

Go With Paid Time, Not a Check

Offering workers paid time off to get the jab is a safer bet legally than sending out a bunch of stipends, experts said.

"What I see a lot of employers doing, which I think is a good idea, is offering PTO, rather than hundreds of dollars in bonuses," FisherBroyles' Gluck said, "because you do have the risk that people who have disabilities or sincerely held religious beliefs are going to say, 'Hey, what about me?'"

While the monetary value of a full day off may be comparable to a one-off stipend, DREDF legal director Center explained that it still clocks at a somewhat lower value than a check because of the way it's used.

"Paid time off, even though a full day might be worth $100 or something, it still seems small enough because you can't exchange it directly for cash," Center said.

Plus, DiMuroGinsberg's Mook added that it will be easier for businesses to justify the bonus in the face of a legal challenge if it's directly tied to the task of getting a COVID-19 vaccine.

"An incentive untethered to any type of time lost by the employee, just $100 out of the blue, could be somewhat more problematic than if the employer could say this is a replacement for the hassle an employee has to go through to get vaccinated," Mook said. "It still may run into some problems, but maybe it's a little bit easier to justify."

Prep Alternative Reward Pathways

If a company opts for a financial incentive, it should be prepared to come up with other avenues to obtain that reward than just by getting vaccinated, experts said, as the required accommodation process under anti-discrimination law is still in play even in the midst of a global health crisis. 

"Employers are going to need to have a process in place to respond to employees who say they cannot get vaccinated either because of a disability or for religious reasons," said Bracewell LLP employment partner Amy Karff Halevy. "When those individuals say, 'I can't get the vaccine, but I still want the incentive,' employers are going to need to address those issues and those circumstances."

The ADA said employers must offer disabled employees a reasonable accommodation to enjoy the same "benefits and privileges of employment" afforded to their peers who don't have a disability. Title VII mandates employers go through a similar process to accommodate a worker's sincerely held religious beliefs. 

While company leaders don't have to make these kinds of adjustments if they would present "undue hardship" to the business — which regulations define as a "significant difficulty or expense" based on the resources of the particular company — lawyers said employers would be wise to steer clear of that defense in these situations.

"Especially if the incentive is de minimis or if the incentive does not have a high cash value, I would not recommend at this point in time, that any employer try to claim that it's an undue burden or an undue hardship under Title VII or the ADA to provide this incentive to somebody who cannot get the vaccine," said Davis Wright Tremaine LLP employment partner Kate Tylee Herz.

Instead, Tylee Herz and Davis Wright benefits expert Lisette Sell said one thing companies could do is ask employees who can't get the vaccine to watch a COVID-19 safety video or complete another productive safety-related task to snag the reward.

"You need to come up with some sort of standard so these people can still get the incentive," Sell said.

They agreed that it's better to install another pathway for disabled or religious workers to get the bonus, rather than just waive the requirements for these workers, as otherwise, a company could undermine its central goal of enticing employees into getting the shot.

"If the workforce starts to learn that if they say they have a religious belief, they get a gift card anyway without having to deal with the hassle of getting a vaccine, I think you've created a disincentive to go and seek the vaccine, " Tylee Herz said.

--Additional reporting by Alexis Shanes. Editing by Abbie Sarfo and Neil Cohen.

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