Examples of Acceptable Vaccine Incentives for Workers

What type of incentives should or should not employers offer? Determining acceptable vaccine incentives for workers also relates to guidelines issued by the EEOC. According to a JD Supra article the most common incentives that employers offer are cash/gifts and paid time off. In fact, based on a survey conducted in 2021: 38% of employers would offer cash/gifts 30% would offer paid time off as incentives 43% were unsure about offering incentives Cash/Gifts Incentives Of the employers surveyed who were offering cash/gifts, 24% said they would provide compensation worth over $100. Around 22% would consider amounts worth under $100. Of the remaining employers, 6% considered giving company-branded merchandise including, water bottles, t-shirts or company store gift cards. The percentage of employers unsure about what type of cash or gifts to give was 48%. Another option that several employers considered was a company raffle. Inoculated employees could enter to win a prize, such as $1,000 cash, an Apple watch or another luxury item. Paid Time Off Incentives Some employers who took the survey considered paid time off as an incentive. The percentages were as follows: 76% were uncertain about how much paid time off to provide 11% considered giving a full day off 11% considered providing four hours or less time off No Incentives Allowed for Employers Vaccinating Family Members Another issue that came up was whether you could offer incentives to employees who allow your company or agent to vaccinate their family members. EEOC guidelines do not permit this. The reason is it would be in violation of GINA (Genetic Information Nondiscrimination Act). It would violate the Title II...

Vaccine Incentives through Employers

What guidelines apply to vaccine incentives? Vaccine incentives through employers are another option for promoting worker vaccinations. However, there are guidelines an employer must follow. According to EEOC’s updated guidance, employers can offer an incentive of any kind when the employee receives the vaccine by a third party. A third party would be someone other than the employer or the employer’s agent. Examples of third parties would be pharmacies, healthcare providers  and public healthcare departments. When offering the incentive, the employer can require proof of vaccination. In doing so, the employer is not asking about physical disability. When the employer or the employer’s agent offers the vaccine, certain limitations exist regarding the types of incentives the employer can offer. In contrast to a third party, an employer’s agent would be an onsite medical staff person. The staff person or nurse would be acting on behalf of the employer. When the employer provides the vaccination through agents, the incentive cannot be “so substantial as to be coercive.” What does “so substantial as to be coercive” mean? This guideline relates to the EEOC’s wellness rules under the Americans with Disabilities Act (ADA). Employers can offer wellness programs to employees, but the incentive shouldn’t be so large that it makes employees feel pressured to disclose private medical information. In relation to vaccinations, employees would provide medical information during the pre-screening process. The incentive can encourage the employee, but the employee should not feel forced or overly persuaded to get the vaccination. Offering incentives to employees with valid reasons for not vaccinating At the same time, the employer must offer the same types...

Voluntary COVID-19 Vaccine Programs for Employment

Confidentiality of Vaccination Proof or Confirmation Voluntary COVID-19 vaccine programs for employment are an option some employers are considering. Employers who aren’t requiring employee vaccination still have the legal right to inquire whether an employee has received the vaccine. This does not violate disability law. However, they may not ask employees about their reasons for not getting vaccinated. Also, as long as employees agree to answer pre-vaccination questions voluntarily, this is legal, even when the employer provides vaccination directly or through an agent. An underlying medical condition may entitle an employee to reasonable accommodations as long as there is no undue hardship for the employer. For example, some employees may be immunocompromised, and therefore the vaccine does not offer them the same protection. The ADA and Confidentiality of Vaccination Proof or Confirmation Vaccination is a medical record. Therefore, it falls under strict confidentiality  requirements based on the Americans with Disabilities Act (ADA). After the EEOC first released guidelines in December 2020, it recommended that employees should not include medical information when providing proof of vaccination. Questions arose as to whether proof of vaccination was medical information and therefore confidential under terms of the ADA. The EEOC affirms that it is. Consequently, employers requesting vaccination proof must store the records separately from the employee’s personnel file. The following restrictions apply as far as sharing the information: When necessary for restricting the employee’s work or duties, employers may inform supervisors and managers If the disability requires emergency treatment, then first aid and safety personnel should be privy to the information Government officials investigating compliance issues can request the information Do you...

EEOC Guidance Updates on Mandatory COVID-19 Vaccination for Employment

To Require or Not Require COVID Vaccination? Mandatory COVID-19 vaccination for employment is still something that the majority of U.S. employers have not required. However, as an employer, it is wise to come to your own decision. In doing so, it is important to understand your rights and the legalities involved with mandating employee vaccination. According to a JD Supra article released June 1, 2021, the EEOC has updated its guidelines for employers. Can Employers Require Employees to Be Vaccinated? The answer is yes, but certain conditions must apply. For example, employers must make reasonable accommodations for employees with disabilities or religious objections. Accommodations might include allowing an unvaccinated employee in the workplace as long as the employee: Wears a face mask Maintains social distancing from others Works a modified shift Receives COVID-19 testing Does telework Could be reassigned to another position Guidelines for Employers Requiring Mandatory COVID-19 Vaccination for Employment Updated best practice guidelines include: Notifying all employees that the employer will consider accommodation requests based on disability or religious objection on an individual basis Inform employees unable to be vaccinated due to disability or religious objections that they are responsible for notifying the employer about their need for exemption Employers should train managers how to recognize a request for accommodation and who in the company should be informed about it Assessing whether the vaccine requirement could have an adverse impact on employees based on their race, color, religion, sex, national origin or age A vaccination requirement may adversely affect some employees more than others, based on their demographic group. Employers should take this into consideration when planning...

Under New York City Anti-Discrimination Law, Who Is an Employer?

Who Can Be a Defendant in a Discrimination Lawsuit? New York City anti-discrimination law gives employees the right to sue an employer for discrimination under the New York City Human Rights Act. Stephen D. Hans & Associates, P.C. has decades of experience defending employers in discrimination lawsuits. Consequently, we took notice regarding this recent landmark ruling rendered by the Court of Appeals. Details of the Case and the Court’s Decision Based on New York City Anti-discrimination Law In Doe v. Bloomberg, L.P., the plaintiff (name kept anonymous) alleged being subjected to sex discrimination and a hostile work environment at Bloomberg, L.P. She claimed that her direct supervisor Nicholas Ferris, engaged in a continuous pattern of sexual harassment, including rape. The lawsuit also named Mike Bloomberg, the Co-Founder, Chief Executive Officer and President of Bloomberg, L.P. as a defendant in the case. She claimed that he had fostered and encouraged a work environment with “sexist and sexually charged behavior.” However, she did not claim that Bloomberg had any personal participation related to the offending conduct. Legal Basis for the Court’s Ruling The anti-discrimination statute allows for liability when “the employer knew of the employee’s or agent’s discriminatory conduct and acquiesced in such conduct or failed to take immediate and appropriate corrective action.” It also recognizes liability when the “employer should have known of the employee’s or agent’s discriminatory conduct.” However, the point at issue in this case was that the term “employer” was not defined clearly. This fact resulted in confusion when determining who was an employer in the context of the statute. The court decided that “employer” based on...

OSHA COVID-19 Recordkeeping and Reporting Requirements

What OSHA COVID-19 Guidelines Apply to Your Business? OSHA COVID-19 recordkeeping and reporting requirements have changed, based on new guidelines released by OSHA on March 12, 2021. The Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) provides the new guidelines for: Complaints Referrals Severe illness reports These guidelines are time-limited to the current coronavirus public health crisis. Does OSHA COVID-19 Recordkeeping and Reporting Apply to Your Business? Many businesses fall under OSHA authority. Exempt businesses include: Businesses regulated by different federal statutes (for example, nuclear power and mining companies) Domestic services employees Businesses that do not engage in interstate commerce Farms where only immediate family members are employees Employers under OSHA authority have the obligation of reporting COVID-19 cases that meet all of the following requirements: As defined by the CDC, a case confirmed as COVID-19 A work-related case (contagion occurred at work) When the following criteria relate to the case: medical treatment beyond first-aid, one or more days spent away from work, restricted work or transfer to another job, death or loss of consciousness, significant illness diagnosed by a physician or licensed health professional Frequently Asked Questions About OSHA Record Reporting How do you report a work-related injury or illness that results in the employee’s death? The OSHA 300 Log contains a space for cases resulting in death. You must check mark the space in the log and report it to OSHA within eight hours. How do you record a work-related illness that results in days away from work? In the OSHA 300 Log, you must check mark in the space related to this category and...