by Jamie Herzlich, Newsday
How far can an employer go to mandate or encourage its employees to get vaccinated against COVID-19? Federal guidelines leave some room for interpretation and discretion, especially when employee objections are based on religion or an individual’s disability.
Recently updated guidance from the U.S. Equal Employment Opportunity EEOC said such requirements would not run afoul of existing federal discrimination laws as long as reasonable accommodations are provided where necessary such as for disability and religious beliefs. Employers can also offer incentives to encourage employees to get vaccinated, says the guidance.
Employer rights to mandate vaccinations have already been resisted on legal grounds. A federal court in Texas on June 12 dismissed a challenge from employees at Houston Methodist Hospital who faced suspension and ultimately termination for refusing the shots. The employees said they would appeal.
The EUA was enough to get hundreds of millions of doses into Americans’ arms to curtail the virus’ spread after official reviews declared the vaccines highly safe and effective. But it is short of a final Food and Drug Administration approval.
The EEOC guidance noted “it is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.”
The federal EEOC guidance states that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19” while allowing “reasonable accommodation” for objections based on religion or disability — “unless providing an accommodation would pose an undue hardship on the operation of the employer’s business,” including excessive costs.
Beyond the mandate issue, the guidance also clarifies incentives can be offered for employees voluntarily showing proof of vaccination.
The guidance doesn’t address any limits on incentives for vaccinations received outside of their employer like at a state-run site or pharmacy, he says. Nor does it lay out parameters on what size incentive might be considered coercive.
Still, offering incentives might “be a slippery slope,” says Yale Pollack, a partner at Ronkonkoma-based Campolo, Middleton & McCormick LLP.
Incentives? Be consistent
For instance, if a company offered an incentive for the first round of employees that were eager to get vaccinated, but now feel they must “up the ante” to encourage those still reluctant, that could pose an issue for those previously vaccinated, he says. Pollack’s advice is to be consistent and don’t change the incentives that were originally given.
Also consider bad feelings could arise if someone with say a closely held religious belief can’t get vaccinated and doesn’t get an incentive as a result.
Pollack pointed to Kroger, the supermarket chain, which found a way around this by giving $100 one-time payment to employees that showed proof of vaccination, but also made it eligible to those that couldn’t receive a vaccination for medical/religious reasons if they completed an educational health/safety course.