With the current widescale rollout of the COVID-19 vaccine, you may be finding that some of your employees don’t want to get vaccinated. This is posing a big problem for many organizations, as it may increase the risk of infection in your workforce and lead to lengthy periods of sick leave and social distancing.
That’s why many employers are asking the question if they can offer vaccine incentives such as gifts and paid leave for their employees to take up the vaccine.
You can indeed offer incentives to your employees.
If you want to offer the vaccine yourself or through a contracted third party, you need to adhere to laws regarding coercion – the incentives cannot be so substantial to employees that they are coercive.
You can get around this law by only requiring proof of vaccination from your employees in order to get the incentives, although this still may lead to other issues. Let’s break this down in a bit more detail.
How are incentives coercive?
The reason the incentives can’t be so substantial as to be coercive when you or a contracted third party are administering the vaccine is because your employees must answer disability-related questions before receiving the vaccine. Through the Americans with Disabilities Act (ADA), employers can’t ask employees for information about their disability, unless it’s related to the job.
This means that if the incentive is very substantial, it could pressure employees to disclose information about their disability that is otherwise protected by the ADA.
In May 2021, the US Equal Employment Opportunity Commission (EEOC) advised on this matter but did not define “coercive” or “substantial” regarding the incentives.
You should be aware of another legal consideration if you’re thinking about administering the vaccine yourself or through your contractor – it could inadvertently create a “group health plan” that would fall under the Employee Retirement Income Security Act of 1974 (ERISA). This would mean more legal obligations on your end.
What about proof of vaccination?
These issues don’t apply if you only require proof that your employees were vaccinated elsewhere in order to get the incentives, because you wouldn’t need to ask the disability-related questions in this scenario.
This means your incentives can be any size when you are only asking for proof of vaccination. You should still be cautious, though. If your incentives are highly substantial, it could lead to mass discontent among those who are still cautious about the vaccine.
There could be public relations consequences, as well. Let’s not forget, you would be requiring long-term employees who are an asset to your organization to undergo what is considered by some to be an experimental medical procedure in order to continue their work for you.
What about people who can’t or don’t want to get vaccinated?
Some employees can’t get vaccinated for legally protected reasons such as disability or religion. There’s also a large percentage of Americans who believe that vaccines simply do not have the efficacy and safety touted by the government bodies, since they are still not approved by the FDA, and are being used under emergency use authorization only at this stage. Additionally, many Americans are concerned over the potential side effects of taking the vaccine in contrast to what they expect to be mild effects of contracting coronavirus, as reported by the Vaccine Adverse Event Reporting System (VAERS).
It may not be prudent to mandate vaccinations in your workplace if you have diligent workers who assist the business greatly, and have done so for many years, but may simply have an objection to vaccination.
If you choose to offer an incentive, you should consider offering employees with obstacles or objections to getting the vaccine the opportunity to earn the incentive in other ways that are related to your organization.
Finally, you should think about whether the non-cash incentives you offer to your employees will be classed as taxable income. The incentives can be excluded from income if they qualify as “de minimis” as defined by the Internal Revenue Service (IRS).
Whether you’re going to offer the vaccine yourself, through a contracted third party, or only require proof of vaccination, consider whether the value of your incentives makes them coercive.
If your employees can’t get vaccinated for medical, philosophical, or religious reasons, consider offering alternate means of earning the incentives to create a fair working environment.
Article provided by ERISA Pros. See original article here.