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Can I Mandate the COVID-19 Vaccine and Provide an Incentive?

As many have started to return to the workplace in hopes of getting back to normal, employers can be found scratching their heads on:

  1. Can I mandate my employees to get the vaccine before coming back to work; and
  2. Can I incentivize employees to get the vaccine?

Although the questions may seem easy to answer at first glance, the reality of it is…it’s not so easy.

Let’s review the first question listed: “Can I mandate my employees to get the COVID-19 vaccine before coming back to work?”

Seems like an obvious YES answer, right?  Afterall, employers can mandate things like a start time, a dress code, access to the building why wouldn’t they be able to mandate a vaccine, especially if it’s for everyone’s good and protection?  The answer to that is…it depends. 

In recent guidance released, the EEOC confirmed that employers may mandate employees be vaccinated in order to return to work however they must provide a reasonable accommodation to employees who cannot receive the vaccination due to medical reasons or religious beliefs under Title VII and the Americans with Disability Act (ADA).  If an accommodation is requested, the employer should provide it unless it would “pose an undue hardship on the operation of the employer’s business.” 

The guidance further indicated employers can mandate the vaccination for safety-related reasons however cannot require a protected individual to be vaccinated “unless they can demonstrate the individual would pose a direct threat to the health or safety of the employee or others in the workplace.” 

The next question that is on many employers' minds is: “Can I incentivize my employees to get the vaccine?”  Again, what seems to be a simple YES response is really…it depends.  

As with any other incentives offered through a wellness program, incentives offered for the COVID-19 vaccination are no different and are bound to their own rules with the various employment laws. The latest guidance from the EEOC clarifies that employers can offer incentives to employees who voluntarily provide documentation to prove their vaccination by an outside group (ex: pharmacy, health care provider or public health department).  As this type of request does not “ask disability related questions” under the ADA, employers can offer incentives to employees and must keep their proof of vaccination confidential, no different than any other medical information.

On the other hand, if the employer is offering the vaccine on a voluntary basis through an onsite clinic or a third-party service, it can still provide incentives however the incentive cannot be “so substantial as to be coercive” for the reason being that a large incentive could make employees feel pressured to disclose protected medical information. Exactly what constitutes a “substantial” incentive has not been clarified by the EEOC.

With employers trying to implement what they feel is best for their workforce, there are a variety of regulations and laws that need to be considered before putting any mandatory vaccine and/or incentive plan in place.  Employers should be prepared to handle employee objections to a mandated vaccine policy, have a process for determining if a