To a nation waiting for action, let me be clearest on this point: Help is on the way.
Those were the words of President Biden in announcing the ordering of 200 million additional COVID-19 vaccine doses, a hike in the distribution of doses to states, and a promise that there will be enough doses to fully vaccinate 300 million Americans by the end of summer. It’s an ambitious plan, but it’s what we need to end a pandemic that has already claimed the lives of more than 425,000 Americans and will claim hundreds of thousands more before we close the book on Covid.
Vaccines, however, only work if people actually accept syringes in their arms. Too many of us say that they won’t.
According to one recent survey, 39 percent of Americans say that they either probably or definitely will not get the COVID-19 vaccine when it becomes available to them. Another survey pegs the number at 37 percent. While these percentages are trending down, and more of us say that we trust the vaccine and will get it, the needle on this issue isn’t moving quickly enough. According to Dr. Fauci, to reach herd immunity (the only thing that will end this pandemic), we need between 75 and 85 percent of the population to be vaccinated.
To overcome this vaccine hesitancy, some employers are offering their employees a financial incentive to obtain the COVID-19 vaccine when it becomes available. Retailers such as Trader Joe’s, and Dollar General, and Instacart are offering small incentives such as a couple of hours of additional paid time off, or nominal (e.g., $25) stipends. Nursing homes, whose employees come in contact with our most vulnerable population, are offering similar incentives to their workers. Others are offering free marijuana (full disclosure: they are marijuana dispensaries).
If you are considering offering a financial incentive to entice your employees to obtain the vaccine when it’s available to them, I caution you to tread carefully to make sure that you do you within the bounds of our equal employment opportunity laws.
1. Vaccination rules must have exceptions for employees’ disabilities under the ADA and employees’ sincerely held religious beliefs under Title VII. For this reason, if you are offering employees a financial incentive to get vaccinated, you better be prepared to offer the same exact incentive to those who cannot get vaccinated because of one of these legally protected reasons.
2. Incentive programs must comply with the EEOC’s wellness program regulations. Admittedly, these regulations will not be final until March 8. Given that COVID-19 vaccinations will stretch for months beyond that date, however, employers should be aware of these rules and the risks they pose. Under these proposed and soon to be final rules, employers may not offer any more than a “de minimis incentive” to encourage employees to participate in a wellness program such as one that incentivizes the receipt of the COVID-19 vaccine. The EEOC does not define “de minimus,” but uses the example of a water bottle or a gift card of modest value as “de minimus” and a $50 per month reduction in annual healthcare costs, paying for an annual gym membership, or an airline ticket as “not de minimus.”
Employers are considering bribes because they work. We just need to make sure that we are doing so within the confines of the law. We don’t want to solve one problem only to create another.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at firstname.lastname@example.org, via telephone at 216-831-0042, on LinkedIn, and on Twitter.