Q: Our Board has expressed a desire to incentivize vaccinations for current employees before discussing a possible removal of our face mask mandate. May we offer an incentive to employees who receive COVID-19 vaccines?
A: Yes. However, any vaccine incentive program should remain strictly voluntary and should contain alternative options for obtaining the incentive for those with a disability preventing vaccination or religious objection.
Legal interpretation of vaccine incentives is minimal; however, based on previous guidance from the Equal Employment Opportunity Commission (EEOC), optional “wellness programs” may be enacted by employers on a voluntary basis. The EEOC has defined a wellness program to include “health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.” These programs may involve educational health-related information or training, nutrition classes, weight loss or smoking cessation programs, onsite exercise facilities or health coaching. It is apparent that an incentive program for vaccinations will fall into the category of a voluntary wellness program, based on prior interpretation from the EEOC and CDC (which have issued guidance on other immunizations, such as the flu vaccine, as part of a workplace wellness program); and, thus, such a program can be implemented by a school district with Board action. The EEOC has cautioned, though, that the incentives themselves should be of de minimus value – such as a small monetary incentive, an extra day of local leave, or a gift of similar value. Large corporations, such as Kroger, American Airlines and McDonald’s, have announced plans for the COVID-19 vaccine, all offering $100 or less, one half or full day of paid time off, or a combination of both.
Importantly, prior to implementing an incentive program, careful consideration should be given to the alternative plans for those employees who have a condition preventing vaccination or who have a religious objection. The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to disabled employees such that they “can enjoy equal benefits and privileges of employment” as non-disabled employees. 29 C.F.R. §1630.2(o)(1)(iii). Title VII of the Civil Rights Act also requires non-discrimination (or equal treatment) of employees’ religious beliefs and/or practices. 29 C.F.R. §1605.2. Thus, the District cannot limit the benefit or privilege of participation in the incentive program when the failure to participate is on the sole basis of these protected characteristics.
As with application of any other ADA analysis, payment of the incentive to one who objects on the basis of a disability would require medical certification confirming the employee’s “qualified” status under the ADA and the need for accommodation (exemption from the vaccine incentive program) prior to being considered eligible for the incentive. Similarly, employees asking for a religious accommodation should be required to “provide enough information to enable the employer to understand what accommodation is needed, and why it is necessitated by a religious practice or belief.” This could be accomplished via development of a standardized form seeking sufficient information to confirm the religious belief being claimed.
Eligibility for those unable to participate in the vaccine incentive program due to a disability or religious objection can be established via alternative requirements such as undergoing COVID-19 testing in regular intervals or completion of health and safety education/training. As vaccine incentive programs are new, especially those related to COVID-19, districts interested in developing such a program should do so only after dialogue with their school attorney.