WORLD’S BEST BOSS: INCENTIVES PROVIDE FLEXIBILITY FOR EMPLOYEES TO RECEIVE THE COVID-19 VACCINE

Introduction

As of January 29, 2021, over 500,000 Arizonans have received at least one dose of the COVID-19 vaccine. However, the state is still reporting over 4,000 new cases of COVID-19 per day and has remained number one in the U.S. for new cases per week. During the COVID-19 pandemic, workplaces have been a source of particularly high risk, especially settings such as factories, schools, and correctional facilities. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued a set of questions and answers providing guidance to employers about legal issues relating to COVID-19. The commission advised that employers can mandate employees to receive the vaccine; however, there are detailed, specific guidelines that the employer must follow in order to remain in compliance with federal law.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal statute enforced by the EEOC to ensure reasonable accommodation and non-discrimination for people with disabilities. If an employer decides to mandate the vaccine, they should be aware that a healthcare professional’s pre-screening interview questions for the vaccination could elicit responses that could disclose an employee’s disability. Consequently, to comply with the ADA, the employer would need to show that the pre-screening questions meet the standard of being “job-related and consistent with business necessity.” The employer could avoid having to meet this standard through two methods. First, they could offer the vaccine to employees voluntarily. Second, the employees could receive the vaccine through a third-party that does not have a contract with the employer, such as a pharmacy or other health care provider. Simply asking the employee whether he or she has proof of vaccination would not require this standard to be met either. But, if the employer asks further questions to the employee about why they do not have proof of vaccination, that could result in answers relating to the employee’s disability, which would then be subject to the standard mentioned above.

According to the ADA, employers can set requirements in the workplace, such as a mandatory COVID-19 vaccination, in order to ensure that “an individual [does] not pose a direct threat to the health or safety of individuals in the workplace.” If a mandatory vaccination requirement would screen out individuals with a disability, then there must be proof that the unvaccinated employee poses a “direct threat.” Failure to answer the pre-screening questions in order to receive the vaccination also could pose a “direct threat” The “direct threat” standard looks at four prongs: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Next, if it is determined that an unvaccinated individual does pose a “direct threat” in the workplace, then the employer can only take action to exclude the individual if they cannot provide reasonable accommodation to eliminate or reduce the “direct threat.” Lastly, if there is no reasonable accommodation, it would be lawful to exclude the employee. To exclude would mean the employer can prevent the employee from physically being in the workplace. The employer would need to check with federal, state, or local authorities to see if other employee rights apply before firing the employee.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is another federal statute whose provisions are carried out by the EEOC to ensure employers do not discriminate based on race, color, religion, national origin, and sex. If an employer mandates the vaccine, employees could also respond by citing a religious observation that prevents them from receiving the vaccine. Under Title VII, employers generally should assume that the employee has a sincerely held religious belief. Next, the employer would have to provide reasonable accommodation for the religious belief, unless it would pose an “undue hardship” under Title VII. “Undue hardship” under the statute means that there is a burden on the employer. Here, similar to the ADA, the employer would be able to lawfully exclude the unvaccinated employee with a sincerely held religious belief if no reasonable accommodation is possible.

Vaccine Incentives

Despite the EEOC’s guidance, so far employers have tended to stray away from mandating the vaccine, citing fears of potential lawsuits and dismantling trust within the employer-employee relationship. Perhaps when a major company mandates it more will follow. For example, as the CEO of United Airlines, Scott Kirby, has already positioned that he wants to require it, stating “I don’t think United will get away with and can realistically be the only company that requires vaccines and makes them mandatory.” For the time being, though, employers have been taking measures to offer incentives for employees to receive the vaccine. Specifically in Arizona, Sonora Quest Laboratories offers its employees a $25 mileage reimbursement for each dosage, in addition to two hours of paid time to go receive it. Similarly, Square One Concepts, the owner of Cold Beers and Cheeseburgers, is paying for employees’associated costs with obtaining the vaccine. Visiting Angels, a home care agency that works with seniors, cites the particular COVID-19 risks for their employees and provides them similar benefits. Larger corporate companies have begun offering similar incentives to employees as well, including ALDI, Chobani, Darden Restaurants (owner of Olive Garden, Yard House, Seasons 52, and more), Dollar General, and Trader Joe’s.

Legal Challenges of Vaccine Incentives

However, providing incentives to employees instead of a mandate does not circumvent all of the legal risks for employers. If the incentive offered provides an extremely high benefit to employees, the EEOC could no longer view the incentive as voluntary, creating further legal challenges. Also, if the employee has a disability or religious belief preventing them from getting the vaccine, the employer would need to take steps to ensure there is an “alternative means” for that employee to receive the same incentive, such as by watching a workplace COVID-19 safety video. Due to these possible legal challenges, over forty employers wrote a letter to the EEOC on February 1, 2021 asking for clarification about permissible vaccine incentives.

Conclusion

Distribution of the COVID-19 vaccine is a critical milestone in what is now reaching a yearlong public health crisis. Dr. Fauci, the leading specialist in infectious diseases, stated that the United States needs at least 70% to 85% of the population vaccinated to return to “normalcy.” But only 65% of Americans in a Gallup poll conducted December 15, 2020 to January 3, 2021 stated that they would be willing to take the vaccine. Thus, by requiring the vaccine or encouraging it with incentives, employers could play a pivotal role in helping to vaccinate a large portion of Americans to combat COVID-19. While both incentives and a vaccine mandate pose legal challenges for the employer, adhering to the EEOC guidance can overcome those hurdles in order to ensure public safety.

"Flu Vaccination Grippe" by Daniel Paquet is licensed under CC BY 2.0

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By Hannah Eaton.

J.D. Candidate, 2022

Hannah Eaton is a 2L Staff Writer completing her Juris Doctor and Masters of Social Work. She received degrees in Social Work and Criminal Justice from Indiana University. She currently works as a Social Work Intern at Adobe Mountain School with the Arizona Department of Juvenile Corrections. She’s an avid hiker and big fan of Dutch Bros.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.