By Joseph S. Brown, Esq.
Over the last several months, businesses have grappled with the impact of COVID-19 vaccinations and a broad array of employment law questions such as whether an employer can make vaccination mandatory or offer their employees an incentive to get vaccinated. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) updated the vaccination section (section K) of its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to clarify a number of vaccination issues arising under the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA).
New York State’s Department of Labor chimed in recently with a clarification on the interplay between New York’s Paid Sick Leave Law and employees who experience side effects from COVID-19 vaccination. With these updates in mind, below are answers to five commonly asked questions about COVID-19 vaccination policies.
1. Can an employer still require employees to get vaccinated?
The answer is still yes. According to the EEOC, federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA . . . .” In other words, a mandatory vaccination policy, among other things, should provide an avenue for employees to seek an exemption based on a disability or a sincerely held religious belief. The updated guidance offers a more detailed recitation of the analysis that an employer should utilize in evaluating reasonable accommodation requests under the ADA and Title VII.
2. Can an employer offer an incentive to an employee to get vaccinated?
Yes . . . but with some limits if the employer or its agent administers the vaccination. The answer to this question had been somewhat murky after the EEOC withdrew proposed rules regarding the incentives employers can provide their employees as part of a wellness program without violating the ADA or GINA. The updated guidance provides some much-needed clarity.
Here is what the EEOC has to say on this topic:
- An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own.
An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent as long as: (1) the incentive is “not so substantial as to be coercive”; and (2) the employer does not acquire genetic information while administering the vaccines.
The EEOC does not offer any guidance at to what the phrase "not so substantial as to be coercive" means, but many legal commentators seem to believe that offering incentives such as 1 to 2 days of Paid Time Off or payments or gift cards up to a couple hundred of dollars are safe.
While the “not so substantial as to be coercive” test does not apply to incentives provided to employees who get vaccinated on their own, businesses should shy away from large incentives given the potential litigation risks that many arise with newly issued guidance on topics as sensitive as employee health and medical information. Businesses are well advised to check with their employment lawyers before unveiling an incentive program to make sure the program is compliant with federal and state laws and reduces litigation exposure.
3. Can an employer offer an incentive for an employee’s family member to get vaccinated?
No. An employer may not offer any incentives to an employee in exchange for a family member's receipt of a vaccination from the employer or its agent. The EEOC reasons that such an incentive would necessarily require the disclosure of the family medical history of the employee, which would violate GINA.
But an employer may offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive if the following conditions are met: (1) those vaccines are voluntary; (2) employees are not penalized if their family members are not vaccinated; (3) and all medical information obtained from family members during the pre-vaccine screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.
4. What can an employer do with information that employees provide about vaccination status?
As a reminder, it is permissible for employers to request that employees provide documentation about their vaccination status. The EEOC reminds employers that employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.
5. Can New York employees utilize paid sick leave if they experience side effects from the COVID-19 vaccine?
Yes. As readers of our blog and Employment & Business Litigation Pointers newsletter are aware:
[U]nder the New York State Paid Sick Leave (PSL) Law, employers must provide employees with time off for, among other things, “the diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member.” An employee taking time to obtain the COVID-19 vaccine most likely qualifies for leave under New York’s PSL or New York City’s Paid Sick Leave Law. If the employee has accrued time under applicable sick leave laws, such time can be used to obtain the COVID-19 vaccine.
Late last week, New York State’s Department of Labor confirmed this interpretation: “employers are obligated to honor the employee’s desire to use accrued [PSL] for the recovery of any side effects of the COVID-19 vaccination.”
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]