Here’s a riddle for a pandemic age: When is a doughnut a carrot?
Answer: When the deep-fried treat is dangled as an enticement to get the COVID-19 vaccine.
Government officials, companies and employers keep trying to persuade vaccine hold-outs to get the shot. They are turning to all kinds of proverbial carrots — including free doughnuts, cash, paid time off and free rides — to incentivize vaccination.
Now, federal workplace regulators are weighing in on how far employer-run incentives can go.
Closely-watched guidance from the Equal Employment Opportunity Commission (EEOC) last week offers some answers for the unprecedented questions on how mass vaccination efforts during a pandemic mesh with workplace protections rules.
The Equal Employment Opportunity Commission said employers can mandate workers get the COVID-19 vaccine, but there are exceptions.
Chief among them: Employers can mandate workers get the coronavirus vaccine, as long as they are not violating provisions in the American with Disabilities Act (ADA). They should also adhere to religious exceptions, local and state law, among other considerations.
“The justification for allowing employers to mandate vaccinations is based upon the logical and strong premise that unvaccinated employees present a ‘direct threat’ to others in the workplace,” according to the National Law Review.
“It is likely the Occupational Safety and Health Administration (OSHA) will promulgate COVID-19, related health and safety rules that employers are required to adhere too. Currently, OSHA is relying on the Center for Disease Control and Prevention (CDC) for guidance pertaining to vaccinated and unvaccinated employees,” it added.
‘Employers are in bit of a quandary’
But there are remaining riddles to the EEOC guidelines, experts say. “It clarified some points we have been advising on,” like incentive programs, said Patricia Pryor, principal at Jackson Lewis, a national law firm representing employers.
But the guidance did not address other topics, like what to do about fully-vaccinated staff and masking policies, she noted. On that point, “employers are in bit of a quandary.”
The EEOC guidelines are important touchstones for employers trying to understand their compliance obligations, so the absence of instructions can be challenging. It’s also tough when government guidelines are prone to wide-ranging interpretation.
For example, when employers bring vaccination programs onsite or partner with a vaccine provider, like a local clinic or a pharmacy, the revised EEOC guidelines said any accompanying rewards for participation or penalties for non-participation cannot be “so substantial as to be coercive.”
Different people could have different opinions on what counts as coercive.
— Patricia Pryor, principal at Jackson Lewis, a national law firm representing employers
Different people could have different opinions on what counts as coercive. “You could read that multiple ways,” Pryor said. “If any incentive changes my mind, does it mean it was coercive or too large? I think it’s an open question.”
Others put it more bluntly. “It’s completely vague,” said Dorit Rubinstein Reiss, a professor at The University of California Hastings College of the Law.
“The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information,” commission chair Charlotte Burrows said in a statement.
(The commission formulated its latest round of guidance before the Centers for Disease Control and Prevention’s mask announcement. The EEOC said it is “considering any impact of these developments.”)
15% of unvaccinated people said they’d be more inclined to get the shot if they received $100 from their state government.
Regulator views on incentive programs help guide company plans, but they also matter because polling shows enticements, at this point, might be nudging people into vaccination sites.
Fifteen percent of unvaccinated people said they’d be more inclined to get the shot if they received $100 from their state government, according a survey released last week by the Kaiser Family Foundation.
What’s more, 11% said a free ticket to a concert or sporting event would do the trick and 10% said they’d consider it for a $20 coupon for food and drinks, the survey said. And 13% said they’d consider vaccination if they got a free ride. (Indeed, Uber
are offering free rides through July 4.)
As of Tuesday, 62.8% of America’s adult population had at least one shot and 51.7% were fully vaccinated, the CDC said.
There’s a lot of focus on proverbial carrots in the vaccination effort. But, don’t forget, there are sticks too — in the form of pink slips for some workers who do not want to get the vaccine.
Case in point: “Employees cannot cite their societal, political, economic philosophies, as well as personal preferences as a reason not to get vaccinated if their employer mandates vaccinations,” the National Law Review analysis of the EEOC guidelines said.
What your job can do
Several lawsuits are testing if employers can dismiss people who refuse the COVID-19 vaccine. So do the newly-revised EEOC guidelines tip the scales for the ex-workers or the employers defending their vaccination mandates?
That might depend on who you ask. Pryor said the newest version of the guidelines makes no difference in those cases, but Reiss said they still give employers a strong basis for a mandate.
First off, it’s important to know the EEOC is talking about two kinds of incentive programs: one where employers offer rewards for after workers get their shots on their own and one that happens when the employer arranges a third party, like a pharmacy, to give the jabs. Both are fine — and employers can ask for proof of vaccination, according to the agency.
What your job cannot do
If employers are arranging for a vaccine provider to either come onsite or handle staff vaccinations, employers can also give their staff’s family the chance to get vaccinated, the EEOC said.
However, a company can’t give any type of incentive to the worker for their family members to get vaccinated. The vaccine administrator, acting on the company’s behalf, would ask medical questions of the family member and the incentive hinges on confirmation of a shot.
But that may be a problem: Genetic Information Nondiscrimination Act (GINA) “prohibits employers from requiring family medical history from workers,” Pryor noted.
Employee protected medical information
Remember the distinction between incentives for workers who just get their own shots and incentives for workers who participate in vaccination efforts arranged by their employer?
“It’s a legal and technical difference, but it’s a real one,” Reiss said. The latter version steers workers into a sort of employer wellness program — and there are limits on how much pressure employers can use for worker participation, she said.
Here’s where observers say there’s a question mark. When the COVID-19 vaccine is provided by the employer or its “agent,” the EEOC says “any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.”
Those giving the vaccine shot ask screening questions that could veer into potential health disabilities. “A very large incentive could make employees feel pressured to disclose protected medical information,” the EEOC said.
There’s no example of what’s too much, but Pryor has some theories based on the EEOC’s past rule proposals in different contexts. The agency has previously said knick knacks like water bottles are okay but offers like $50 off monthly health-insurance premiums are too much, according to her.
It’s up to employers to find the right point between the two, Pryor said.
Emergency use authorization
The EEOC emphasized federal workplace anti-discrimination laws, “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
(Of course, there are “reasonable accommodation” processes for people who cannot get the shot for health reasons or religious beliefs, the agency acknowledged.)
But the lawsuits challenging vaccine requirements at work are focused on a different question: Whether employers have the power to mandate vaccines that the U.S. Food and Drug Administration green-lights for emergency use authorization (EUA).
Do employers have the power to mandate vaccines that the FDA green-lights for emergency use authorization?
In recent months, the EEOC said it has been getting a lot of questions from workers and companies about the emergency use authorization and what it means for workplace rules.
But the agency is not going to go there. It is “beyond the EEOC’s jurisdiction” to discuss the legal implications of emergency use authorization or the FDA approach, the guidance said.
When it comes to vaccine requirements at work, Pryor said the EEOC “made it clear that it’s possible under the laws we regulate, but we don’t regulate them all. We are not giving across-the-board approval.”
Pryor said she, and everyone else following the subject, will just have to stay tuned to watch how the lawsuits play out.