To incentivize or not – that is the question of the moment. Some employers in essential businesses have already announced they will pay employees to receive the COVID-19 vaccine, but many others continue to assess their role in encouraging their workers to get immunized. In early results from an ongoing Mercer survey with more than 350 participants to date, about 7% are moving ahead with incentives and about 40% have decided against it – but about half say they have not yet determined what they will do. To help employers think through the pros, cons and legal requirements of vaccine incentives, we turned to two Mercer colleagues – a doctor and a lawyer. Here’s what they said.
The doctor: David Zieg, MD
A segment of the US population remains hesitant to receive the COVID-19 vaccine. This is not surprising given that this is a new disease and that the vaccine was developed and approved in record time. Further, widespread disinformation about COVID-19 has shown confusion and distrust. It seems unlikely that incentives will affect the behavior of people who are strongly opposed to taking the vaccine. But it’s also not clear whether incentives will meaningfully improve uptake among those who are hesitant rather than opposed. Many will wait to be vaccinated until they feel comfortable -- which will take time and experience, not money.
Certainly, for some employees who don’t feel strongly one way or the other, an incentive may be the nudge they need to make the effort to get vaccinated. Others may feel their employer is coercing them into accepting the vaccine, especially if they are experiencing financial challenges and need the money that’s being offered. The good news is that the majority of the population is willing to get vaccinated; which means that incentives are not targeted to these people and will not change their behavior.
We are seeing employers who decide not to incentivize employees to take the vaccine provide direction and support in a variety of other ways:
- Providing a step-by-step guide for employees that describes how to get vaccinated in their communities
- Reiterating accurate information provided by the CDC with the latest facts about the vaccine
- Working with local public health officials, carriers and vendor partners to facilitate vaccinations for employees (this takes patience and persistence, but it’s paying off for some employers)
Employers with essential workers can issue letters to each employee identifying them as essential workers and describing how their business is defined as critical infrastructure or another essential business. This can be helpful when the employee seeks vaccination during these early stages of the vaccine roll-out.
The lawyer: Wade Symons, JD
For employers that want to proceed with incentives, there are different considerations depending on whether the employer will be involved in the vaccine administration or simply encourage employees to seek vaccinations in their communities.
For those involved with vaccine administration, I would point out that while the EEOC’s updated guidance clarifies that the administration of a vaccine alone does not constitute a medical examination, the questions an employee must answer before receiving the vaccine will almost certainly qualify as a disability-related inquiry under the ADA. Thus, ADA restrictions would apply, even if the employer has contracted with a third-party to administer the vaccine. In connection with an incentive program, that means the incentive likely must be limited in order for it to be considered a “voluntary” program.
An incentive tied to vaccination without employer involvement – simply encouraging employees to get vaccinated through a county health department or pharmacy chain -- would not implicate the ADA. Limits on incentives should not apply since the pre-vaccination medical questions do not tie back to the employer. And, per the EEOC, requiring proof of vaccination is not a medical inquiry under the ADA. Thus, the employer would be free to ask for such proof in order to provide the applicable incentive.
An important issue for employers to also consider when providing a vaccination incentive is the need to provide an accommodation due to disability or religious objection. The obligation to accommodate would only be implicated in situations where an employee is unable to get the vaccine due to a disability or an objection based on a sincere religious belief, and then, only absent undue hardship to the employer. But when an accommodation is required, the employer would need to consider alternatives to getting the vaccine, such as periodic COVID testing or working remotely, so the employee with the disability-related or religious objection is still able to earn the incentive.
Plan for the long haul
Whatever you decide about incentivizing vaccinations, plan for the long haul back to normal to extend through 2021. You’ll need to continue sharing information transparently with employees and set appropriate expectations about returning to work and the need to continue wearing masks and following protocols for physical distancing. Even as the number of individuals being vaccinated starts to grow, public health restrictions won’t be lifted until we see herd immunity in our communities.
