As the first wave of essential workers and high-risk individuals continue to get the COVID-19 vaccine, employers are considering how they can encourage employees to get vaccinated. Under the FDA’s Emergency Use Authorization, distribution will likely remain limited to those groups identified as priority by the CDC for the next few months. However, once full approval is granted and the vaccine is widely available, it will be critical for your organization to have a clear strategy in place for your workforce.
Under current EEOC guidance, you may require employees get vaccinated unless they have a medical condition or sincerely held religious belief that does not allow the vaccine. And, even though mandating vaccination is permitted, at this stage most employers have not taken this approach. Instead, they’re looking for ways to encourage vaccination once widely available.
What strategies are employers adopting to encourage vaccination?
Using an Incentive Strategy to Encourage Vaccination
As this topic has been capturing employers’ attention, some large national employers have announced plans to provide various incentives for employees to encourage them to get vaccinated. Examples include Instacart ($25 stipend), Dollar General (4 hours’ PTO), and Trader Joe’s and Aldi (2 hours PTO). The focus of these incentive strategies is providing compensation for needed time away from work to get the vaccine. Still other employers are providing cash incentives as a reward. Regardless of the type of incentive, you’ll need to be mindful of legal considerations if you decide to adopt incentives.
Both the Health Insurance Portability and Accountability Act (HIPAA) and the American’s with Disabilities Act (ADA) come into play when implementing a wellness-related incentive program. EEOC guidance issued in December of 2020 indicates that merely asking whether an employee has been vaccinated is not a disability-related inquiry triggering the ADA. However, pre-vaccine health questions could trigger ADA issues.
Similarly, merely asking about whether an employee has been vaccinated would not implicate HIPAA’s wellness regulations. But, if done as part of a wellness program tied to your health plan, compliance with HIPAA’s wellness regulations is required.
Given the ease by which a vaccination program could implicate HIPAA and the ADA, a wise approach is to design a vaccine incentive program that is consistent with current regulatory muster. In simple terms, here is what that means:
- As an employer, you should not have access to any vaccine-related medical inquiries. Limit your knowledge as to whether an employee was vaccinated. And, do not tie the availability of the reward to health plan eligibility or participation. This avoids ADA and HIPAA compliance concerns with respect to the incentive program.
- The value of your incentive should not exceed 30% of the cost of self-only coverage under your health plan.
- Refusal to take the vaccine due to a health condition or firmly held religious belief should be accommodated, and you should consider providing the reward anyway if the refusal for medical or religious reasons is substantiated. You could require alternative measures to earn the reward, such as wearing masks and practicing social distancing while in the workplace.
Of course, complying with these regulations creates other issues that you must consider. First, substantiating a medical or religious reason for refusing a vaccine may be difficult to administer. And, rewarding with paid time off could potentially exceed the 30% threshold for the value of a wellness reward. That said, legal compliance does not need to be a barrier to adopting an incentive program as long as it is designed with these regulations in mind.
You should also be mindful that incentives are not always viewed by employees as a good thing. In fact, some employees may interpret the incentive as sending a message that the vaccine is risky, painful or otherwise undesirable. Communicating the incentive as a thank you or reward for championing workplace safety could minimize this perception. Also, incenting through paid time off tied directly to being away from work for the vaccine should minimize this perception as well.
Using a Communication Strategy to Encourage Vaccination
If you wish to not go down the incentive road, you can leverage your existing internal communication strategy. As outlined in a recent National Law Review article, here are a few strategies and messages to consider for your communications:
- Adopt a communication program that encourages employees to follow the Center for Disease Control’s (CDC) vaccination recommendations and get a COVID-19 vaccine.
- Provide factual data such as information provided by the CDC about the safety and benefits of the vaccine.
- Provide logistical information (available from the state or local health department) about where and how to register, where to go to get the vaccine, and what to expect at the vaccination appointment.
- Remind employees that the vaccine is available at no cost under your health plan. Once on-site vendors are available, consider making the vaccine available on site, similar to current flu shot programs.
Why is Frequent and Intentional Communication Important?
Regardless of whether you decide to take the incentive approach, a clear communication strategy around the reasons you’re encouraging the vaccine is critical to building trust and gaining buy-in. The message to employees that the health and safety of employees, their families and their coworkers is highest priority must be loud and clear.
What’s Next on the Horizon?
We believe that available guidance and employer approaches will continue to evolve as the available vaccines gain full FDA approval and begin to be widely distributed. At that point, you may want to reconsider your decision whether to require the vaccine, particularly if you’re in an industry with higher risk of exposure such as health care and hospitality. In addition, states may begin to take action against the vaccination requirement, such as the bill recently introduced in Indiana. Our team is closely monitoring developments in this area, and as the landscape changes we will keep you informed.
As you consider your options, please reach out to me or a member of our advisory team and we will help you design an approach that fits your company’s culture and goals. You can also drop us a line here or tweet at us.
Have you created a clear and compliant communication and health strategy for the vaccine rollout? Your people may be in the dark. Get your on-demand webinar on all things vaccine strategy – what you need to know about the vaccine, what and how to communicate with your people, and how some organizations are approaching rollout.