February 17, 2021 • Shirley A. Gauvin
Category: Legal Updates
As the coronavirus vaccine becomes more widely available over the next few months, many employers grapple with the question of whether to mandate the vaccine. Following EEOC guidelines, some employers plan to require it as a condition to returning to the workplace (i.e., nursing homes). In contrast, others prefer to “encourage” vaccinations, leaving the ultimate decision to employees. In an effort to minimize health risks and provide peace of mind to employees returning to the workplace, some employers are asking whether they can offer incentives to encourage employees who get the vaccine.
Joining dozens of other companies, Target recently announced it will offer up to four hours of pay plus a Lyft ride ($15 each way) to its 350,000 full- and part-time employees who get the vaccine. Employees of Trader Joe’s will earn two hours of extra pay. Instacart will offer a $25 stipend. Kroger employees will receive $100. Yogurt maker Chobani will offer up to six hours of paid time off for its 2,200 employees to get vaccinated. McDonald’s, Olive Garden, Dollar General, and many others have employed similar incentives. Many employees report that a $100 incentive would persuade them to say yes to the vaccine.
However, there are limits to these types of incentives, and it remains unclear whether such vaccine incentives would be considered a part of a “wellness program” by the EEOC. Pursuant to the ADA, if the wellness program probes into disability-related matters, it must be voluntary. When employees get the vaccine, they often are asked health-related questions, which could be deemed disability-related. Therefore, a vaccine program encouraged by the employer could be considered a wellness program under the ADA. This means employers can likely offer de minimus gifts (e.g., a water bottle or gift card of modest value), but anything beyond that could appear coercive or involuntary and thus risk running afoul of the ADA.
With this in mind, employers who seek to incentivize employees should choose modest incentives that would not implicate the law, at least until further guidance is provided by the EEOC concerning incentives. In the meantime, if a more significant incentive is chosen, the employer should consider offering it to those who vaccinate and those who cannot vaccinate due to disability or religious reasons.
Those seeking to offer incentives beyond de minimus gifts should carefully consider the possible wage and hour implications of such benefits for non-exempt employees. For example, cash incentives might need to be included in employee compensation when calculating overtime premiums for non-exempt employees, so this type of gift could leave employers vulnerable to other, unanticipated claims.
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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.