Incentives and Vaccinations – Critical Considerations for Employers
Recognizing that they can attract more flies with sugar than with vinegar, when it comes to getting the workforce vaccinated against COVID, many employers are angling toward offering incentives rather than issuing mandates. Of course, in the battle of clichés, they are also recognizing that too often no good deed goes unpunished.
Questions about the advisability and potential liability of offering incentives to employees to get vaccinated are moving front and center. This week the president encouraged employers to give their workers paid time off for getting vaccinated, and announced a tax credit to help companies with fewer than 500 employees that will cover paid leave for up to $511 per day for up to 10 workdays (80 hours), taken between April 1 and Sept. 30. This is in line with incentives already in place in several states, including California and New York.
Looking beyond what may be statutory, many employers are anxiously awaiting the promised (and forthcoming) EEOC guidance on the question of incentives. Last week, the EEOC’s acting legal counsel, Carol Miaskoff, stated that the agency expects to update its technical assistance to address these issues, but was not able to provide a timeline.
For the moment, we will hope that we will make our plans based on agency guidance and state and federal laws, rather than by following litigation. We will also hope that this guidance comes soon, as this is a very critical and time-sensitive issue for many businesses. Please continue to our blog for a deeper dive into this issue.
What is an Incentive?
As employers consider whether or not to offer incentives for their employees to get vaccinated, the first important step is to get an understanding of what actually constitutes an incentive. What we call an incentive today, may just be a cost of doing business tomorrow. For example, recent surveys show that over a third of employers are already providing paid time off to get vaccinated and to recover from the vaccinations. If the president’s call to action becomes law on a federal level, this will no longer be the employer’s choice, nor will it technically be an incentive.
A survey completed in mid-March by Willis Towers Watson found that about 20% of respondents were already offering incentives to get vaccinated, and another 29% were planning or considering doing so in the future.
Incentives can take a number of forms:
- Paid Time Off for getting vaccinated and recovering from the vaccination;
- Paid Tine Off that is a reward above and beyond the actual vaccination process. This could be an added day or two of PTO that can be taken at another time;
- Cash incentives, Gift Cards, Expense Reimbursements.
We are seeing a wide range of incentive programs being offered by employers. For example:
- Target – providing hourly employees up to four hours of pay—two hours for each vaccine dose—as well as free Lyft rides (up to $15 each way) to get to and from their appointments;
- Aon – offering all employees two days of paid time off for each dose;
- Amtrak – offering two hours of regular wages for employees that show proof of vaccination, and excused absences to recover from any side effects within 48 hours of receiving the shots;
- Kroger – offering a $100 bonus for employees that show proof of vaccination and giving all of its essential and frontline workers an additional $100 store credit and 1,000 fuel points for use at its Fuel Centers.
We can expect to see significant changes (either enhancing or restricting) incentives once the EEOC has weighed in on the issue. Additionally, of course, we can expect changes as the vaccinations become more readily available and more medical and scientific research is published.
What is at Risk When Incentives are Offered?
We know that employers can technically mandate vaccinations should they choose to do so. There may be several industries for which this would make more sense; however, recent surveys indicate that only about 10% of employers are supportive of making vaccination mandatory. We also have to keep in mind that employees can be exempted from these mandates for medical or religious reasons.
Given that there is little excitement around mandating vaccinations, but strong support for having the workforce vaccinated, the idea of incentives makes a lot of sense. And, “making a lot of sense” in HR terms is often code for “it is very problematic.”
The most obvious issue that must be overcome when considering incentives is what to do with employees that are exempted from vaccination requirements. Here are some questions to consider:
- Would providing the incentive to other employees violate federal anti-bias laws?
- How would this work with the Americans with Disabilities Act (ADA)?
- Could the incentive be in violation of the ADA’s restriction on incentives as part of wellness programs?
- Could this be considered disparate treatment?
- And, what about employees that are simple “vaccine-adverse” but not in an exempted group?
Some of this will probably depend on the size or value of the incentive being offered. Anything beyond a small bump could lose its “voluntary” status. Employers must also take into account specifics related to their workforce, their location and their industry when considering how to approach employees about incentives.
While never the answer we like to get, we can expect that the EEOC guidance will provide some form of clarification. That means we are probably better off waiting until we see that before launching anything new. We also know that, if we are not already covered by a state law or local ordinance mandating PTO for vaccinations, this will probably be coming soon on a federal level.
In the meantime, employers are encouraged to look for incentives that can be offered to all employees – including those who cannot be vaccinated or choose to not be vaccinated. This could involve offering the incentive for either getting vaccinated or for completing a training course or getting tested on a regular basis.
As we have been experiencing throughout the COVID era, we should always go through a few extra stages of due diligence before making any decisions that will impact the well-being of employees. There is a lot at stake!