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Few Employers Mandate COVID-19 Vaccine for Workers

As the vaccine rollout continues most employers seem to be avoiding requiring their workers to get the inoculation, especially considering the legal risks and increasing number of bills introduced in state legislatures that would ban such mandates.

Additionally, many people are skeptical of the vaccines and some may have religious objections to getting vaccines. As a result, many employers, even those with staff at the greatest risk of contracting COVID-19 on the job, are not requiring the shots so they can avoid the potential legal and liability minefield, according to lawyers and risk management experts who are working with clients on the issue.

Because this is uncharted territory, employers are doing what they can to not overstep and expose themselves to possible lawsuits by employees. This is despite the U.S. Equal Employment Opportunity Commission having announced earlier that employers can make vaccinations mandatory.

It should also be noted that all of the COVID-19 vaccines approved for use in the US were authorized by the Food and Drug administration for “emergency use,” which requires that disclosures that people getting the vaccines are doing so voluntarily. That too is an important distinction.

On top of that, many state legislatures are moving on legislation that would bar employers from requiring workers to get the vaccine.

Even health care workers, who are arguably one of the highest risk groups for contracting the coronavirus, are not all choosing to be vaccinated. A poll conducted on March 19 by the Kaiser Family Foundation and The Washington Post found that 18% of health care workers surveyed said they would not get the vaccine. Another 12% said they were undecided.

For a look at the population as a whole, a survey of 802 Americans by Monmouth University on Feb. 25 found that 25% of them said they would not get vaccinated.

The soft approach

Instead, more and more employers have decided instead to focus on incentives. Some have offered cash to workers who get vaccines, while others are giving them vacation days and gift cards.

Many employers have also decided to give workers paid time off to get a vaccine as well as sick days if they have an adverse reaction following getting the vaccine. Sometimes they will give the time off for a full or half-day.

While there is no federal mandate requiring employers to provide paid sick leave for vaccinations, California Gov. Gavin Newsom in March signed into law a bill that permits employees to use their supplemental paid sick leave benefits in order to attend vaccination appointments and if they are experiencing symptoms from a COVID-19 vaccine that prevent them from working or teleworking.

Raytheon Technologies, for example, is offering employees financial bonuses as part of their overall wellness plan if they get a COVID-19 vaccine. Kroger announced in February that it would pay every employee who gets vaccinated a $100 bonus.

But even the soft approach may run into hurdles. People who may not be able to get the vaccine due to health or religious reasons could claim discrimination if they cannot participate in the incentive.

Similarly, if an employer provides incentives for employees to get vaccinated as part of an employer’s wellness plan or program, such incentives may run afoul of the Americans with Disabilities Act.

VMA members have access to ThinkHR, an human resources portal with live support and a free 20 minute consult with a Human Resources Attorney—all included with membership. For more information, contact Shannon@vma.bz.

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