Can I Require the COVID-19 Vaccine for Employees?
“Although her claims fail as a matter of law, it is also necessary to clarify that Bridges has not been coerced. Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”[1]
With these words, written by Judge Lynn Hughes in dismissing the first lawsuit against an employer implementing a COVID vaccine mandate, employers around the country began to implement their own strategies to get employees vaccinated. Some chose to create mandatory vaccination policies, others put together increasingly attractive rewards for those who take the plunge, and certain employers chose to pass the amounts COVID treatments were costing their health plans back onto the unvaccinated.
The Law Behind Mandates and Penalties
Up until mid-2021, attorneys were clamoring for guidance from the Equal Employment Opportunity Commission (“EEOC”) regarding employer vaccine mandates and incentives. During the pandemic, the only legal leg these vaccine incentive programs had to stand on was the EEOC regulations on employer wellness program incentives. This was problematic for two reasons:
- for the longest time the monetary limits on these types of wellness incentives were unclear, thus causing employers to worry they were running afoul of various Federal statutes by spending too much;
- and just when the EEOC finally announced clarifying regulations (in January of 2021) that would drastically decrease the amount employers could spend on such incentives, the Biden administration put a freeze on all potential regulations for further review, therefore throwing everyone back into legal purgatory.
Luckily, on May 28, 2021, the EEOC announced new rules that have created a path forward for most employers looking to ensure their employees receive the COVID-19 vaccination. The EEOC validated employer mandatory vaccination policies, with religious and medical exceptions, by stating “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”[2]
However, for those employers choosing to provide incentives in lieu of implementing a mandatory vaccination policy the EEOC created a two-prong approach[3]:
1. For employers who encourage the voluntary vaccination of their employees, but are not directly administering the vaccine to their employees, there is no apparent limit on the incentives that can be offered. So, incentives like a bonus, one-time payment for getting the shot, or increased PTO can be provided to employees with little worry of violating federal law. Employers can even provide such incentives to family members of the employee.
2. For employers, or agents/entities acting on their behalf (think hired on-site nurses/doctors administering the vaccine), who are distributing the vaccines directly to their employees, there is a limit on the incentive provided to get vaccinated. These types of employers will typically be your healthcare providers and vendors who have access to and can provide COVID-19 vaccines. The employers who choose to distribute the vaccines to their employees may only incentivize; the incentive cannot be so substantial as to be considered coercive, in effect forcing an employee to get vaccinated.
The reasoning behind the variance in treatment of these incentives displays the EEOC’s apprehension concerning how easily an employer could create an environment where the combination of vaccinations being provided at work and a large incentive could cause an employee to feel like they have no choice but to get the vaccine.[4] Furthermore, the pre-vaccine screening, if such information is not correctly walled off from the employer’s human resources, could reveal personal disability and health conditions the employer typically would not discover.[5] For most employers, the path of least resistance is a robust incentive program that rewards employees who receive their vaccines from unrelated third-party healthcare providers. The remaining employers choosing to utilize the second path should be conscious that, because of the size of the incentive, employees could feel they are being coerced into getting the vaccine. If you have to ask if the incentive is too large, it may be an indication the incentive is “coercive.”
How Companies are Implementing Vaccine Policies
The list of companies shifting to a mandatory vaccination policy for all employees grows the deeper we progress into the pandemic and includes the likes of Amtrak, United Airlines, Google, Microsoft, Citigroup, and Tyson Foods.[6] Companies like The Walt Disney Company and Delta Airlines have added an interesting wrinkle by developing bifurcated vaccination policies, requiring that new hires be vaccinated while current employees either have incentives to voluntarily vaccinate or have mandatory vaccination policies that require vaccination much later in the year.
An exceedingly popular policy utilized by Aldi, McDonald’s, Trader Joe’s, Dollar General, and many others are vaccination incentives that pay employees the equivalent of up to four hours of pay or two hours of pay per shot.[7] Healthcare providers like Houston Methodist Hospital and others in the finance industry are offering one-time bonuses ranging anywhere from $100 to $500 to those willing to get vaccinated.[8] Finally, some companies are treating unvaccinated employees like smokers and charging them a monthly surcharge if the employee continues to receive their health insurance through the employer.[9] In its most basic form, a surcharge tied to the employee’s health plan is still an incentive to get vaccinated, as it saves the employee the surcharge amount.
Why Do Employers Care About Vaccination Status?
Why are all of these companies so eager to have their employees vaccinated against COVID-19? Delta CEO Ed Bastion laid out the case quite clearly: “The average hospital stay for COVID-19 has cost Delta $50,000 per person. This surcharge will be necessary to address the financial risk the decision to not vaccinate is creating for our company.” Employers around the nation are grappling with the massive increase in their healthcare costs caused by COVID-19, and with a vaccine the math is simple: a company will spend $500 to prevent a potential $50,000 charge almost every time. And what if an employee doesn’t want to comply with a valid mandatory vaccination policy, or a potential employee feels it is unfair new hires should be required to be vaccinated? As Judge Lynn Hughes so succinctly put it, “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
