Sound legal guidance on vaccine incentives

A prominent employment lawyer shares expert advice on how employers can mitigate the risk of triggering a viable discrimination claim.

By Brian Weinthal      
Vaccine incentive guidance

As the number of Americans inoculated against COVID-19 continues to rise, so too does the number of individuals who are voicing reservations over receiving a vaccine.

These self-described “anti-vaxxers” raise various objections to immunization—from fear of long-term side effects to significantly more “eccentric” concerns (such the idea that the COVID-19 vaccine places a microchip in your body that allows your movements to be tracked by the federal government).  While many less rational oppositions to vaccination might seem humorous, a sustained and ongoing campaign of internet disinformation is not helping the currently available vaccines to gain traction among individuals who are ambivalent about their safety and benefits.

But new data suggests that workplace incentives might be the key to engaging with anti-vaxxers to change their mindsets regarding the acceptability of COVID-19 vaccines.  For example, a recent independent study found that although 43% of workers indicated they might consider leaving their companies if employers mandated a vaccine, 60% of those surveyed also responded that they would voluntarily receive a COVID-19 vaccine if their employers offered a $100 incentive to do so.  This enthusiasm for workplace rewards provides at least some evidence that employers may have better luck incentivizing (rather than mandating) a COVID-19 vaccine in an effort to get the vast majority of the country back to work.

But incentivizing vaccines is not without risk.  Employers must be cautious to engage with employees who claim they cannot receive a vaccine, particularly if the demurring employees are members of a protected class.  In the context of vaccinations, the two most frequently occurring reasons for employees to decline a vaccine will likely be:

1. Religion (i.e., the employee has a sincerely held religious belief that prohibits him or her from receiving a vaccine).

2. Disability (i.e., the employee has a disability-related condition that prevents him or her from receiving a vaccine).

In either instance, employees may claim that their inability to compete for the available incentive is discriminatory, as the law generally requires employers to provide the same benefits and opportunities to all employees.  For this reason, the Equal Employment Opportunity Commission (EEOC) has advised that any employer-sponsored incentives for COVID-19 vaccinations should remain small, citing (as examples) “either a water bottle or a gift card of nominal value.”

Many employers are thinking creatively since the announcement of the Pfizer and Moderna vaccines, offering incentives such as PTO to those employees who are willing to become vaccinated.  This is a sound option and a legally defensible method of staying within the guidance provided by the EEOC.  PTO has no independent or external cash value outside of work, and employers can very easily track and monitor this benefit as it is provided to employees.  PTO can also be advanced (or deducted) using currently available company resources, which in turn allows employers to ensure that identical increments of PTO are extended to employees for each encouraged behavior.

Employers using PTO as a means of incentivizing vaccination should keep two additional points in mind.  First, consistent with the EEOC’s guidance, any amounts of PTO given to employees as a reward should be small.  A few hours off to get the vaccine—or a few hours off to recover from any side effects—is unlikely to present any significant legal concerns, whereas giving an employee two weeks off in exchange for a single shot will almost certainly create animosity on the part of employees who cannot become vaccinated on religious or disability grounds.

Second, employers who offer PTO as an incentive to become vaccinated should provide some alternative mechanism for enabling those who cannot get vaccinated to compete for the available reward.  This might include a sales goal or other performance metric, but the basic idea is to allow employees who have religious or disability-based justifications for avoiding vaccination to still take part in the reward of PTO.  By ensuring that all employees have a means of earning this incentive, employers mitigate the attendant risk that a vaccine incentive program may ultimately trigger a viable discrimination claim.

The foregoing points are only a fraction of the issues that employers will need to consider as COVID-19 vaccines become more widely available over the next several months.  Employers are strongly encouraged to work hand-in-hand with their human resources leaders and their employment law attorneys as state and federal guidance continues to develop in the area of employee vaccinations.

Brian Weinthal is a partner at Burke, Warren, MacKay & Serritella focusing on employment-related lawsuits. He can be reached at BWeinthal@BurkeLaw.com.