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Published in Health Care
Local health care workers administer COVID-19 vaccines at the DeVos Place in Grand Rapids. Local health care workers administer COVID-19 vaccines at the DeVos Place in Grand Rapids. PHOTO COURTESY OF SPECTRUM HEALTH

Experts seek federal guidance as employers offer COVID-19 vaccine incentives

BY Sunday, March 28, 2021 06:30pm

growing number of employers are offering incentives to their workers who opt for getting a COVID-19 vaccine, including with extra paid time off or small cash bonuses.

At automotive repair center Belle Tire, employees are paid $25 for each vaccination visit, or $50 total if they get the dual-dose vaccine from Pfizer Inc. or Moderna Inc. The amount will more than compensate employees for the time they may need to leave work to get vaccinated, company officials say.

“We want to make sure all of the employees who want the vaccination can get it and feel safe, and that they don’t have to choose between staying on the clock and earning an hourly wage versus trying to get the vaccination,” said Don Barnes III, president of the Allen Park-based Belle Tire. The company has 127 stores in Michigan, Indiana and Ohio, more than 2,300 employees, and is one of the nation’s largest tire dealers.

“We want all of the employees of all types to be able to do that so that they feel when they are at work it’s safe to be at work,” Barnes told MiBiz. “We want to make sure we create a safe working environment for all and we don’t want any of our teammates to hesitate.”

Belle Tire’s small employee incentive is a typical example of what some companies are doing to encourage employees to get a COVID-19 vaccine, particularly workers who are in direct contact with the public. Employers offering small incentives are generally using a cash reward or additional paid time off, which workers can use for their vaccination visit and afterward if they don’t feel well as the vaccine takes effect in the body.

Avoiding coercion

However, experts say employers need to consider an array of federal regulations that are intended to prevent coercion as they offer vaccine incentives to employees.

As with workplace wellness programs, federal regulations require that employers provide a “reasonable accommodation” for employees to earn an incentive if they opt not to get vaccinated, Kristen Guinn, a shareholder at Grand Rapids-based Smith Haughey Rice & Roegge PC, said during a presentation last week at the Grand Rapids Area Chamber of Commerce’s Health Care Summit.

“They should provide alternative ways to earn those incentives by employees who do not want to receive a vaccine. For example, maybe attending training or a continuing education program,” Guinn said.

Federal regulators view employers’ COVID-19 vaccine incentives similarly to incentives to encourage wellness program participation: Employers may offer them to encourage participation, but cannot make an incentive so large or valuable that an employee feels compelled or coerced to participate.

A federal regulatory agency may consider an incentive to be coercive if it is “so large that the average employee has no choice but to accept,” said labor and employment attorney Richard Warren, a partner at Miller, Canfield, Paddock and Stone PLC.

Some of Warren’s clients offer $100 cash incentives for employees to get a COVID-19 vaccine, he said. Warren’s “very comfortable that $100 or less would not be deemed coercive by any federal agency.”

The federal Equal Employment Opportunity Commission (EEOC) under former President Trump proposed rules last year that allow minor vaccine incentives, Warren said. The EEOC withdrew the proposed rule after President Biden took office in January.

While a new EEOC proposal is expected soon, the withdrawal for now leaves uncertainty about the level of incentives that employers can offer, Warren said.

“So we are left with no firm guidance, other than it can’t be coercive,” he said. “There’s no bright line dollar amount or bright line value amount that will cross the line between an incentive into coercion, and that’s what the agencies are using. You can’t coerce someone into getting the vaccine.”

‘Legal uncertainty’

A coalition of more than 30 national trade associations in February wrote to the EEOC, urging it to “quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC.”

“Employer-provided incentives can assist governments in quickly and efficiently distributing vaccines. Legal uncertainty about providing such incentives, however, has many employers concerned over liability and has made them hesitant to act,” according to the letter.

Employers may mandate that employees get vaccinated, although the Americans with Disabilities Act requires that they evaluate who cannot receive a vaccine because of a medical condition or disability, Guinn said. The law requires employers to “attempt to make reasonable accommodations” for those employees — such as remote work or absent under hardship — before excluding them from the workplace, she said.

Guinn urges employers to follow best practices that include creating a written policy, tailoring a vaccine program, and providing reasonable accommodations to employees.

Many of the employers Warren represents that offer incentives consider getting their workforce vaccinated as a possible competitive advantage. 

The Employers’ Association in Grand Rapids recently polled a group of members on behalf of MiBiz on whether or how they are offering vaccine incentives. Among the employers that responded, a handful said they were offering additional paid time off. A few contacted by MiBiz declined to discuss their policies.

“I don’t have any employers or clients that don’t take COVID-19 seriously. They know what a disruption it has caused in their workflow, customer flow and revenue, and they want these employees vaccinated and not result in any work stoppages because they are sick or out,” Warren said, adding that telling clients and customers that workers are vaccinated can create “more of a sense of ease.”

That peace of mind for customers is part of the rationale for the $25 per-shot bonus at Belle Tire.

The company wants to keep employees safe and ease customers’ angst when they come into a store for a vehicle repair, Barnes said.

“We want to make sure our customers coming in feel confident and safe,” he said.

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