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: Right here's what employers CANNOT do to induce employees to get a COVID-19 vaccination

Answer: When the fried treat dangles as a lure to the COVID-19 vaccine.

Government officials, corporations, and employers keep trying to convince those who don't want vaccinations to get the vaccine. They are turning to all kinds of proverbial carrots – including free donuts, cash, paid time off, and free travel – to incentivize vaccination.

Now state workplace regulators are weighing how far employer-led incentives can go.

Last week's closely followed guidelines on Equal Opportunities (EEOC) provide some answers to the unprecedented questions of how mass vaccination efforts during a pandemic align with workplace safety regulations.

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The Employment Equality Commission said employers can instruct workers to receive the COVID-19 vaccine, but there are exceptions.

Most important of them, employers can require workers to get the coronavirus vaccine as long as they don't violate the provisions of the American with Disabilities Act (ADA). You should also adhere to religious exceptions, local and state laws, among other things.

"The justification for employers to require vaccination is based on the logical and strong premise that unvaccinated workers pose a 'direct threat' to others in the workplace," according to the National Law Review.

“OSHA is likely to issue COVID-19 and related health and safety regulations that employers must also comply with. OSHA currently relies on the Center for Disease Control and Prevention (CDC) for guidance on vaccinated and unvaccinated workers, ”she added.

"Employers are in a bind"

But there are still puzzles surrounding the EEOC guidelines, experts say. "It clarified a number of issues that we were advising on," such as incentive programs, said Patricia Pryor, director at Jackson Lewis, a national law firm that represents employers.

But the guidelines didn't cover other topics, such as what to do with fully vaccinated employees and masking guidelines, she noted. On this point, “employers are in a quandary”.

The EEOC guidelines are important touchstones for employers trying to understand their compliance obligations, so the lack of guidance can be challenging. It's also difficult when government guidelines are prone to far-reaching interpretations.

For example, if employers bring on-site vaccination programs or work with a vaccine provider such as a local clinic or pharmacy, the revised EEOC guidelines state that accompanying rewards for attending or penalties for not attending may not “be so significant as they are To represent coercion. ”

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Different people can have different opinions about what constitutes coercion.

– Patricia Pryor, director at Jackson Lewis, a national law firm representing employers

Different people can have different opinions about what constitutes coercion. "There are several ways to read this," said Pryor. “If any incentive changes my mind, does that mean it was forced or too big? I think that's an open question. "

Others put it more clearly. "It's completely vague," said Dorit Rubinstein Reiss, a professor at the University of California's Hastings College of the Law.

"EEOC will continue to clarify and update our technical support on COVID-19 to ensure we provide clear, easy-to-understand and helpful information to the public," Commission Chair Charlotte Burrows said in a statement.

(The Commission drafted its latest round of guidelines prior to the announcement of the Centers for Disease Control and Prevention masks. The EEOC said it was "considering all the implications of these developments.")

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15% of unvaccinated people said they would be more likely to get the vaccination if they received $ 100 from their state government.

Regulators' views on incentive programs help guide business plans, but they are also important as surveys show that enticements at this point may push people towards vaccination sites.

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

In addition, 11% said a free ticket to a concert or sporting event would be enough, and 10% said they would consider it for a $ 20 food and drink voucher, according to the survey. And 13% said they would consider vaccinating if they got a free ride. (Indeed, Uber
ABOVE,
+ 3.04%
and Lyft
LYFT,
+ 1.92%
offer free rides through July 4th.)

As of Sunday, 63.4% of America's adult population had at least one vaccination and 52.5% were fully vaccinated, the CDC said.

Much emphasis is placed on the proverbial carrots in vaccination efforts. But don't forget, there are sticks in the form of pink slips of paper for some workers who don't want to get the vaccine.

Case in point: "Employees cannot cite their social, political, economic philosophies and personal preferences as reasons not to be vaccinated when their employer prescribes vaccinations," says the National Law Review's analysis of the EEOC guidelines.

What your job can do

Several lawsuits are testing whether employers can fire people who reject the COVID-19 vaccine. So are the newly revised EEOC guidelines the decisive factor for former employees or employers defending their obligation to vaccinate?

That may depend on who you ask. Pryor said the latest version of the guidelines made no difference in these cases, but Reiss said they still provide employers with a strong mandate basis.

First of all, it's important to know that the EEOC is talking about two types of incentive programs: one where employers offer rewards after workers get their injections themselves, and one where the employer provides a third party, such as one Pharmacy, arranged to give the japs. Both are doing well – and employers can, according to the agency, request proof of vaccination.

What your job can't

If employers can arrange for a vaccine provider to either come on-site or vaccinate employees, employers can also give their employees' families the option to get vaccinated, according to the EEOC.

However, a company cannot incentivize workers to get their family members vaccinated. The vaccine administrator, acting on behalf of the company, would ask the family member medical questions, and the incentive would depend on confirmation of a vaccination.

But that can be a problem: The Genetic Information Nondiscrimination Act (GINA) "prohibits employers from requiring a family history of workers," noted Pryor.

Employee-protected medical information

Do you remember the difference between incentives for employees who only get their own vaccination and incentives for employees who take part in vaccination campaigns organized by the employer?

"It's a legal and a technical difference, but a real one," said Reiss. The latter version steers workers into some kind of employer wellness program – and there are limits to how much pressure employers can put on employee participation, she said.

Here's where observers say there's a question mark. When the COVID-19 vaccine is provided by the employer or its "agent", the EEOC says that "any incentive (which includes both rewards and penalties) is not so significant as to be a coercion."

Those who receive the vaccination ask screening questions that could lead to potential health disabilities. "A very big incentive could result in employees feeling pressured to disclose proprietary medical information," said the EEOC.

There is no example of what is too much, but Pryor has some theories based on the EEOC's past rule proposals in different contexts. The agency previously said bells and whistles like bottled water are fine, but they think offers like $ 50 off monthly health insurance premiums are too much.

It's up to employers to find the right point between the two, Pryor said.

Emergency use authorization

The EEOC stressed federal anti-discrimination laws in the workplace, "Do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated against COVID-19".

(Of course, there are "reasonable accommodation" procedures for people unable to inject for health or religious reasons, the agency conceded.)

However, the lawsuits challenging vaccine requirements at work focus on a different question: whether employers have the authority to prescribe vaccines that the U.S. Food and Drug Administration approves for Emergency Authorization (EEA).

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Are employers empowered to prescribe vaccines that the FDA gives the green light for emergency approval?

All three publicly available vaccines, the Moderna shots
MRNA,
+ 5.56%,
Pfizer / BioNTech and Johnson & Johnson
JNJ,
-0.04%,
were published on EUA. Moderna and Pfizer-BioNTech
PFE,
+ 0.46%

BNTX,
+ 8.35%
aim for full FDA approval.

In recent months, the EEOC has announced that it has received many questions from workers and companies about emergency permits and their implications for workplace regulations.

But the agency won't go there. According to the guidelines, it is "outside the EEOC's responsibility" to discuss the legal implications of an emergency permit or the FDA approach.

Regarding vaccine requirements at work, Pryor said the EEOC “made it clear that this can be done under the laws we regulate, but we don't regulate everyone. We do not give general approval. "

Pryor said that she, and anyone else following the issue, just need to stay tuned to see how the lawsuits end.

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