Now, federal workplace regulators are weighing down how far employer-managed incentives can go.

The closely watched Equal Employment Opportunities Commission (EEOC) guidelines last week offer some answers to unprecedented questions about how mass vaccination efforts during a pandemic fit into the rules of the world. protection in the workplace.

Main among them: Employers can require workers to be vaccinated against the coronavirus, as long as they do not violate the provisions of the American with Disabilities Act (ADA). They must also respect religious exceptions, local and state laws, among other considerations.

“The rationale for allowing employers to require vaccinations is based on the logical and strong premise that unvaccinated employees present a ‘direct threat’ to others in the workplace,” according to the National Law Review.

“The Occupational Safety and Health Administration (OSHA) is likely to enact COVID-19, related health and safety rules that employers are also required to follow. Currently, OSHA relies on the Center for Disease Control and Prevention (CDC) for advice regarding vaccinated and unvaccinated employees, ”he added.

“Employers are in a bit of embarrassment”

But there are still puzzles to the EEOC guidelines, experts say. “It clarified some points on which we have given advice,” such as incentive programs, said Patricia Pryor, director of Jackson Lewis, a national law firm representing employers.

But the guidelines did not address other topics, such as what to do about fully immunized staff and masking policies, she noted. On this point, “the employers are in a bit of an embarrassment”.

EEOC guidelines are important touchstones for employers trying to understand their compliance obligations, so lack of guidance can be difficult. It is also difficult when government directives are subject to very broad interpretation.

For example, when employers offer on-site vaccination programs or partner with a vaccine supplier, such as a local clinic or pharmacy, the revised EEOC guidelines indicate that the rewards associated with participation or penalties for participation non-participation cannot be “as great as it is coercive”. “

Different people may have different opinions about what is considered coercive. “You can read this in a number of ways,” Pryor said. “If an inducement makes me change my mind, does that mean it was coercive or too strong?” I think this is an open question.

Others say it more bluntly. “It’s completely vague,” said Dorit Rubinstein Reiss, a professor at the University of California Hastings College of the Law.

“The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we provide clear, easy-to-understand and useful information to the public,” Commission Chair Charlotte Burrows said in a statement.

(The commission made its final set of guidance ahead of the Centers for Disease Control and Prevention’s masks announcement. The EEOC said it “considers any impact of these developments.”)

Regulators ‘views on incentive programs help guide companies’ plans, but they are also important because polls show that incentives, at this point, could push people to vaccination sites.

Fifteen percent of unvaccinated people said they would be more likely to get the vaccine if they received $ 100 from their state government, according to a survey released last week by the Kaiser Family Foundation.

Additionally, 11% said a free ticket to a concert or sporting event would do the trick and 10% said they would consider it for a $ 20 voucher for food and drink, according to the investigation. And 13% said they would consider the vaccination if they had a free ride. (Indeed, Uber UBER,
-0.37%
and Lyft LYFT,
-0.51%
offer free rides until July 4.)

As of Tuesday, 62.8% of the US adult population had received at least one injection and 51.7% were fully vaccinated, the CDC said.

There is a lot of emphasis on the proverbial carrots in the vaccination effort. But do not forget that there are also sticks, in the form of pink leaflets for certain workers who do not want to be vaccinated.

Case in point: “Employees cannot cite their societal, political and economic philosophies, as well as their personal preferences as reasons for not getting vaccinated if their employer requires vaccinations,” according to the National Law Review’s analysis of the guidelines of the EEOC.

What your job can do

Several lawsuits are currently testing whether employers can fire people who refuse the COVID-19 vaccine. So, do the newly revised EEOC guidelines tip the scales for ex-workers or employers defending their immunization mandates?

It may depend on who you ask. Pryor said the latest version of the guidelines made no difference in these cases, but Reiss said they always give employers a solid foundation for a tenure.

First of all, it’s important to know that the EEOC talks about two types of incentive programs: one where employers offer rewards after workers get themselves vaccinated and one which occurs when the employer asks a third party, like a pharmacy, to give the jabs. Both are fine – and employers can ask for proof of vaccination, according to the agency.

What your job can’t do

If employers arrange for a vaccine supplier to come on-site or take care of staff vaccinations, employers can also give their staff’s families the opportunity to get vaccinated, the EEOC said.

However, a company cannot offer any type of incentive for the worker to have their family members vaccinated. The vaccine administrator, acting on behalf of the company, would ask the family member medical questions and the incentive is dependent on confirmation of a vaccine.

But that can be a problem: The Genetic Information Non-Discrimination Act (GINA) “prohibits employers from requiring a family medical history from workers,” Pryor noted.

Health information protected by employees

Remember the distinction between incentives for workers who just get vaccinated and incentives for workers who participate in vaccination efforts organized by their employer?

“It’s a legal and technical difference, but it’s a real difference,” Reiss said. This latest version directs workers towards some sort of employer welfare agenda – and there are limits to the pressure employers can exert for worker participation, she said.

Here is where watchers say there is a question mark. When the COVID-19 vaccine is provided by the employer or his “agent”, the EEOC says “Any inducement (which includes both rewards and penalties) is not significant enough to be coercive.”

Those who make the vaccine ask screening questions that could lead to potential health problems. “A very big incentive could make employees feel compelled to disclose protected health information,” the EEOC said.

There is no example of which is too much, but Pryor has a few theories based on previous EEOC rule proposals in different contexts. The agency has previously said trinkets like water bottles are okay, but offers like $ 50 off monthly health insurance premiums are too high, it says.

It’s up to employers to find the right point in between, Pryor said.

Emergency use authorization

The EEOC pointed out that federal anti-discrimination workplace laws “do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated against COVID-19.”

(Of course, there are “reasonable accommodation” processes for people who cannot get vaccinated for reasons of health or religious beliefs, the agency acknowledged.)

But lawsuits challenging workplace vaccine requirements focus on a different question: Do employers have the power to require vaccines from the U.S. Food and Drug Administration to give the green light for clearance. emergency use (EUA).

The three vaccines available to the public, Moderna MRNA injections,
+ 3.76%,
Pfizer / BioNTech and Johnson & Johnson JNJ,
+ 0.40%,
were published on EUA. Moderna and Pfizer-BioNTech PFE,
+ 0.75%

BNTX,
+ 6.43%
are seeking full FDA approval.

Over the past few months, the EEOC said it has received numerous questions from workers and companies about emergency use authorization and what that means for workplace rules.

But the agency is not going to go there. It is “beyond the purview of the EEOC” to discuss the legal implications of the emergency use authorization or the FDA’s approach, depending on the guidelines.

Regarding workplace vaccine requirements, Pryor said the EEOC “has made it clear that this is possible under the laws we regulate, but not all of us. We do not give blanket approval.

Pryor said she, and anyone following the topic, will just have to stay tuned to see how the lawsuits go.