Vaccine incentives and mandates? Check with legal first

A survey of HR managers and employees by the Virginia-based Society for Human Resource Management found that 60% of workers will probably or definitely get a COVID-19 vaccine as soon they are able — but 28% would still choose not to, even if it meant losing their jobs.

A job loss is unlikely, though. Only 5% of organizations plan to require the vaccine for some or all of their employees, according to an SHRM survey of more than 3,000 HR professionals and workers. But many employers are actively encouraging their employees to get vaccinated.

Some are using incentives to get them to get vaccinated. In fact, nearly one-quarter of employed Americans who probably or definitely won’t get vaccinated would consider doing so if offered a meaningful incentive.

Common incentives include cash bonuses or stipends, additional paid time off, no cost on-site vaccination, gift cards and food vouchers.

While well-intended, SHRM says vaccination incentives could be a legal mine field for companies.

“One of the issues is that it could be potentially discriminatory. If, for example, employees are given incentives, but employees who have disabilities or sincerely-held religious beliefs who can’t get the vaccine, if they are excluded from getting those incentives, it could be discrimination,” said Amber Clayton, Knowledge Center director at SHRM.

For employers who have not decided whether they will require a COVID-19 vaccine for employees — and SHRM’s survey shows 35% have not yet — deciding to do so also opens up the company to potential legal exposure.

“There are some states that have proposed regulations which would prevent employers from mandating vaccines, and while there haven’t been any laws enacted as of yet, if they are, employers may not be able to require them in those states,” Clayton said.

“And also, if employers do require the vaccines and they subsequently terminate someone for refusing vaccines, that person could potentially file legal action. They may have a case if they are protected under laws like the Americans with Disabilities Act or the Civil Rights Act, or if there was no job-related reason for mandating the vaccine.”

Those most likely to require vaccinated employees will be in health care, public education and elder care, because of the risk of exposure to those in their care, and may face little resistance from employees for vaccine mandates.

The majority of HR managers surveyed by SHRM say they won’t require vaccines or have not yet decided, but 33% of employees would support mandatory vaccines for everyone in their workplace who is able to receive it.

While companies weigh vaccine policies and incentives, the Equal Employment Opportunity Commission has yet to issue updated guidelines on either.

SHRM and other organizations have requested updated policy guidelines from the EEOC and says HR departments should check regularly to see if such updated guidelines have been issued, as well as keeping up to date on federal, state and local health department guidelines.

Jeff Clabaugh

Jeff Clabaugh has spent 20 years covering the Washington region's economy and financial markets for WTOP as part of a partnership with the Washington Business Journal, and officially joined the WTOP newsroom staff in January 2016.

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