Are You Nudging Your Employees To Get Vaccinated?

April 29, 2021 at 9:59 am Leave a comment

The HR obstacle course that is the COVID-19 pandemic is entering one of its trickiest phases for employers and employees alike.  In New York, the initial rush to get the vaccine has ebbed and you can now walk in and get a shot without spending hours refreshing your internet browser or scouring your medical history for a qualifying condition.  While this is of course good news, it means that employers must confront the question of whether or not to require their employees to get the vaccine?  Are they going to provide incentives?  Or are they going to simply let the situation play itself out naturally?  Each one of these choices has legal risks and benefits.  And remember, the framework for these considerations could be impacted by the HERO Act, New York State legislation currently pending before the Governor which I talked about in a recent blog.  

First, let’s start with the basics.  Contrary to what your Uncle Al may have told you, you can require your employees to get vaccinated as a condition of employment.  The EEOC has made this abundantly clear, provided you comply with the ADA’s mandate to reasonably accommodate employees who face risks from the shots or who have genuine and sincere religious beliefs.  For example, you may have employees with weakened immune systems for whom taking the vaccine poses clear risks.  For more on this nuanced area of employment law, go to section K5 of this EEOC guidance.  

Let’s assume that your credit union has decided it is better to use a carrot than a stick when it comes to vaccinations.  I was just reading this morning how Orlando Disney is going to make it a wonderful day for its employees who get vaccinated by giving them a bonus. 

But even this simple incentive raises potential legal concerns.  For example, are you violating the ADA if you provide a bonus for which certain employees – such as individuals with weak immune systems – cannot qualify? 

As more and more employees return to the workplace, how are you going to deal with those who have gotten vaccinated and those who have not?  For instance, are you discriminating against employees if you say they can only go on business trips if they have gotten vaccinated?  For an excellent analysis of these issues go to this link.

These questions are not simply the meandering thoughts of a blogger midway through his second cup of coffee.  Yesterday, the EEOC held a hearing in which it asked questions to a wide range of stakeholders urging the EEOC to address precisely these and other issues ASAP.  The good news is that the EEOC has indicated that it plans to do so in the near future. 

In the meantime, take the time to discuss these issues if you haven’t done so already and remember, that even subtle changes could have negative legal consequences if implemented improperly.  Best not to be penny wise and pound foolish; keep your HR attorney in the loop in these discussions. 

Entry filed under: COVID-19, HR. Tags: , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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