Trying to get employees back to work by offering vaccination incentives in the form of cash might seem like a good idea but there are some things to consider before you offer these incentives.

What is there to consider?

  • The EEOC has not provided any clarification on how they will treat the cash incentive so there is uncertainty in doing that right now.
  • If the incentive is considered a “wellness program” it will be subject to all of the wellness programs rules and regulations which can be cumbersome.
  • There could be issues with the Americans With Disabilities Act (ADA) if an employee does not want the vaccine because of a health condition and doesn’t wish to disclose this to the employer.
  • The same is true if the employee does not wish to get the vaccine because of religious beliefs.
  • If the incentive is considered a non-discretionary bonus under the FLSA rules, it would have to be added to the employee’s base pay in determining overtime costs.
  • Who will collect personal health information to determine eligibility?  Employers need to be careful about liability around HIPAA, GINA, ADA and employment laws protecting this type of information.

What are your options?

You could provide incentives in the form of time off for your employees to get vaccinated.  Rather than paying a cash bonus you could opt to provide paid leave or additional vacation time to employees who get the vaccine during work hours.  Employers would still have to be careful not to run afoul of privacy and discrimination laws with these incentives but they wouldn’t be violating any FLSA rules.

The bottom line is that the issue of incentivizing employees to get Covid vaccinations is not as simple as it may first appear and employers should proceed with caution until further guidance is offered.  If you do decide to offer these incentives to your employees you should at the very least make them completely voluntary and consider hiring a third party to verify that employees were properly vaccinated or that they qualify for an exemption based on things like religious beliefs and disability.  That way you as the employer will not be liable for discrimination based on employee health status.  Stay tuned.  This issue is rapidly evolving and hopefully more guidance is right around the corner.

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