COVID-19 Vaccine Incentives in the Workplace and the ADA – Lyerly – 2021 – Campus Legal Advisor

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Many college and university stakeholders may wonder if the incentive issue is debatable as the EEOC advocates mandatory vaccination policies in the workplace. Certainly, mandatory employee vaccinations can seem like the path of least resistance to higher levels of COVID-19 immunity on campus, in the workplace, and across the country. The Biden government seems to think so; The president recently directed the Department of Labor to develop an emergency rule requiring all employers with 100 or more workers to ensure full vaccination or continuous negative COVID-19 tests in workers.

Several state governors and public interest groups have announced that they will be challenging President Biden’s mandate. It is currently unclear whether the regulation will stand up to judicial review. Therefore, this article deals with vaccination incentives without reference to President Biden’s rule.

Many colleges and universities have to deal with state laws that prohibit vaccination regulations or rule out discrimination based on vaccination status. For example, Montana recently passed law making vaccination status a protected trait and prohibiting discrimination against employees based on that trait. See Montana House Bill 702. Other states have passed or pending bills prohibiting employers from dismissing, discriminating, or hiring an employee for failing to provide evidence of vaccination status. See Texas Senate Bill 1669.

In the event of a conflict between state law and federal law, post-secondary institutions could choose to offer vaccine incentives instead of mandates. Likewise, colleges and universities that are concerned about workplace culture related to mandatory vaccination may prefer the carrot to the whip. Therefore, incentives for COVID-19 vaccines are still of great importance in the public health discussions between colleges and universities and their staff. The continued presence of the Delta variant makes it imperative to reconsider the EEOC’s early summer guidelines on incentives and their impact on colleges and universities.

Vaccination incentives and the ADA

Post-secondary institutions continue to offer faculty and staff vaccination incentives ranging from gift cards and cash prizes to parking permits and cooking classes. Ball State University offered a slightly different carrot by giving employees the chance to win a cooking class with their assistant director of college catering as an incentive to vaccinate. However, COVID-19 vaccine incentives are not without legal risks, especially for ADA compliance.

As noted above, the EEOC has stated that employers can legitimately incentivize their employees to provide evidence of vaccination under the ADA. These guidelines are particularly applicable to employers requesting confirmation of an injection from a worker by a third party, for example a pharmacy or other healthcare provider. According to the EEOC, the requirement for proof that an employee has received a vaccination themselves is not a disability-related request that is covered by the ADA. This suggests that a college or university can offer whatever incentive to employees who apply for COVID-19 vaccination from an independent medical provider.

Different rules apply if an employer is offering an incentive for voluntary vaccination at the workplace by the employer or his agentwhich is often the case at universities. The EEOC insists that incentives are still allowed in these circumstances – but they cannot be significant enough to be “compulsory”. Vaccinations require employees to answer screening questions that might imply their protected disability information. Therefore, a huge incentive could encourage employees to disclose their sensitive medical information to an employer – and risk a confrontation with the ADA.

Previous regulations and judgments on incentives and the ADA

The EEOC gave no instructions on what incentives an employer can use to encourage COVID-19 vaccinations without coercion. However, the earlier guidance on incentives and wellness programs could be a pole star for post-secondary institutions as they consider ways to increase vaccination rates among staff and faculties.

The ADA allows employers such as colleges and universities to submit disability-related inquiries in accordance with a. to deliver voluntarily Wellness program. Before analyzing whether a vaccination incentive is compulsory, a post-secondary institution must first check whether its incentive program is voluntary.

Fortunately, previous EEOC regulations can help IHEs determine whether a vaccine incentive plan is voluntary. Specifically, a voluntary wellness program: (1) does not require employee participation; (2) does not deny employees coverage under a group health insurance plan for non-attendance; and (3) will not take adverse, retaliatory, or coercive action against any employee who chooses not to participate (29 CFR § 1630 (2016)). Employers must also provide reasonable accommodation to workers who are unable to attend due to a disability. In addition, they must tell participants what medical information the employer is looking for, how they are using it, and what methods the employer has to prevent improper disclosure (ID card).

When their vaccination guidelines are voluntary, colleges and universities can incentivize employees, but not compel them to receive vaccinations through the institution or its agent. But when is an incentive compulsion? The current EEOC guidelines only suggest that an incentive should not result in employees feeling pressured to disclose their proprietary medical information or information about disabilities.

In January 2021, the EEOC proposed regulations that reduce incentives for participation-based wellness programs to “de minimusParticipation-based programs require employees to participate in certain health initiatives, such as taking a vaccine. The January 2021 rules, which were eventually withdrawn, included water bottles and gift cards of modest value de minimus Incentives – but no paid gym memberships or free plane tickets.

Although the EEOC has abolished these rules, colleges and universities appear to be incorporating the spirit of the proposed guidelines into their vaccination incentive programs, with gift cards of $ 500.00 or less being a significant portion of the enticements. However, these examples come from different guidelines; the May 2021 guidelines did not include examples of potential coercive incentives, so colleges and universities cut the line between de minimus and coercion.

Follow the instructions

There were hardly any complaints that questioned the legitimacy of vaccination incentives. This development (or lack thereof) is somewhat surprising given the often contentious environment for incentives for wellness programs (see Lisa Kwesell et al. against Yale University, 3: 19-cv-1098 (D. Conn. July 16, 2019), a class action lawsuit against Yale for allegedly requiring employees to involuntarily disclose medical information as part of a health program, or an annual fine of $ 1,300 threaten). Is it a sign of clear waters or just the calm before the storm? Time will tell, but the following are useful transition best practices:
  • Post-secondary institutions should work with legal counsel to evaluate the EEOC’s updated guidance and apply it to any planned vaccination incentive program.
  • Employers should update existing vaccination incentive guidelines to reflect the new guidelines.
  • Colleges and universities should consider using the Center for Disease Control’s COVID-19 Pre-Vaccination Checklist for voluntary vaccinations offered by the institution or its agents.
  • Facilities should have a plan to maintain the confidentiality of documents related to the vaccination status of teachers or staff and other information related to protected disabilities under the ADA.


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