Commentary

Mandating COVID-19 Vaccinations

Right now, a surprising number of eligible workers are declining to be vaccinated, with a similar percentage indicating that they will refuse once they become eligible.  Depending upon whose numbers you believe, approximately one-half of the healthcare workers and first responders eligible to receive the vaccine have indicated that they will not do so.  This is leading many employers to consider whether or not they should require or even incentivize their workers to take the vaccine.  There are a few things to keep in mind if you are considering doing so.

ADA/Title VII:  You can require employees to get the vaccine.  However, you must accommodate a disabled employee who is unable to take the vaccine (ADA) as well as an employee who objects to being vaccinated due to sincerely-held religious beliefs (Title VII).  If either the ADA or Title VII applies to your situation, you may not be able to force the employee to accept the vaccine.  Rather, you might accommodate the employee by allowing him or her to work remotely or offer him or her an alternate schedule that does not require as much co-worker and client interaction.

The EEOC has already stated that getting the COVID-19 vaccine is not a medical examination, but questions asked in the vaccination process may well seek medical information in violation of the ADA.  This information should remain with the vaccine administrator and not be provided to the employer.

FLSA:  You must consider if the time spent by your workers being vaccinated is compensable time under the FLSA.  If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so.  I recommend that you pay for everyone to get the vaccine.

Voluntary wellness program:  Many employers are considering offering employees some sort of incentive to encourage them to be vaccinated.  Employers should carefully consider the ramifications of each type of incentive.  A cash reward could constitute a non-discretionary bonus that must be included in a non-exempt employee’s regular rate of pay for the period in which it was earned.  In addition, employers must consider whether offering an incentive would constitute a voluntary wellness program that might be prohibited by the EEOC guidelines.