‘It gets really tricky’: With vaccine mandates, incentives now legal, here’s what it means for employers

But while the update has cleared up that particular gray area, it doesn’t render return-to-work policies any easier for employers. Unless you’re a legal expert or have a penchant for nosing through dense legal documents, across not just the EEOC but other relevant regulatory bodies, things can start to get easily tangled. Here’s a break down of key things to know. 

Quick fact recap on the EEOC update:

• Employers can legally mandate that their workers get vaccinated, but they must accommodate those who, for religious, health or disability-related reasons, either cannot or choose not to be.
• Vaccine incentives are legal and uncapped for employers that don’t administer the vaccine themselves (which is most of them). 
• Employers can ask workers to disclose their vaccination status, but that information can’t then be shared. 
• People who can provide proof that they have health-related or religious reasons that prevent them being vaccinated, can wear masks or observe other safety requirements. 

No more fence sitters 
A bunch of businesses have contemplated whether or not to mandate vaccinations for returning workers, but hadn’t been confident it was legal, according to independent consultants spoken to for this article. Now the EEOC has confirmed that it is, those businesses will likely go all-in on mandating vaccines. “These are tricky waters to navigate, so those businesses that were leaning into it [mandating vaccines] now have a fallback position — that the EEOC says it’s OK,” said Nancy Hill, CEO of independent consultancy for agencies Media Sherpas, and former 4As president. 

While many business owners are still reluctant to mandate vaccines, others strongly believe it’s a critical part of getting business back on track. “Without a healthy workforce, there is no business,” said Rick Wilson, CEO of e-commerce tech firm Miva. “If we are rightly mandated by law to provide basic public safety precautions, such as building codes, fire prevention, why wouldn’t we also provide protection from a virus which is transmitted person-to-person through the air? I would be letting down our workers and clients if I didn’t do everything in my power to protect my workplace with it [vaccine],” he added. 

Mandating vaccinations risks hurting diversity and inclusion progress 
Although the EEOC has said employers cannot reveal a worker’s vaccination status, if that employee has to wear a mask or be subject to different rules, it’ll become pretty clear what their so-called status is to others. That may cause resentment or mistreatment. It could certainly result in people who haven’t been vaccinated, being left out of meetings and projects. Some businesses are already trying to protect employees who are vaccinated and back at work, versus those who aren’t vaccinated. For instance, some ad agencies have stipulated that if a group of staff are to meet a client, those who haven’t been vaccinated can’t ride in the same car as those who have, according to Media Sherpas’ Hill. That’s only going to increase now businesses are legally backed to mandate by the EEOC.

“Vaccine mandates can create an environment of the haves and have nots,” said Mark Piazza, 4A’s, svp, Business Intelligence & Insight Group. He stressed the importance of businesses considering each employee’s situation in order to come up with a solution to their concerns, in a way that can meet both the company and the employee’s interests. “Be consistent to avoid creating irregularities,” he added. He also advised that agencies speak with their legal counsels before implementing a vaccine policy.   

Brian Dolan, CEO of tech platform WorkReduce, said it’s a very difficult situation for employers, who have to try and balance the health risks for their staff, with respecting people’s personal choices. His own cousin caught the coronavirus from a woman in his office who flouted mask guidelines, and so was off work for three weeks while he recovered. “That’s a terrible outcome for both him and his employer,” he said. “In general, employers are best served by staying out of their employees’ personal lives as much as possible, but this is one area where it gets really tricky.”

If you employ, for example, transplant recipients for whom the vaccine doesn’t seem to work well, the last thing you want to do is create further risk for them by exposing them to COVID-19, said Dolan. “Those might be employees you’d like to have in the office,” he added.

Most employers prefer the carrot to the stick 
One of the reasons businesses have pressed the EEOC over the last few months for guidance on whether they can legally offer incentives is so they can opt for the carrot rather than stick approach. After all, employers are already grappling with the challenge of how to incentivize people to return to the office, let alone wanting to dabble with controversial and sensitive topics like whether or not to mandate vaccines.

For many, it’s a choice they’d rather not have to make. In this case, the carrot is the trusty incentive. Some businesses have been bold enough to already offer incentives, with the most common examples being additional PTO, bonuses, gift cards, or entries into prize lotteries. It’s an approach that seems to be working: 40% of employees across 400 businesses polled by global management consulting firm McKinsey, said initiatives would significantly increase their likelihood of getting vaccinated. 

Businesses like ad agency holding group WPP have said they have no plans to mandate vaccines, despite the update. “We fully support the global vaccination effort and encourage our people to take the opportunity to be vaccinated by providing flexibility in working hours to do so,” said a WPP spokesperson.

In some ways, employers may be better off avoiding mandates for now. Law firms are closely monitoring proposed legislation that prohibits “vaccine passports” or vaccination requirements, according to Hayley Geiler, associate at Dinsmore and Shohl law firm. “There is legislation pending in multiple states, which, if passed, would prohibit employers from requiring employees to become vaccinated, prohibit employers for asking employees to disclose vaccination status, and prohibit employers from taking adverse action against an employee due to their vaccination status,” she added. That’s an area employers will also need to monitor.

Vaccination incentives raise ethical issues 
The EEOC has said incentives can’t be deemed “coercive” but they haven’t actually capped them or stated explicitly what constitutes coercive. For that reason, they’re not without risks, and employers must ensure that incentives are not overly coercive or discriminatory,” said Dinsmore’s Geiler. This may include granting accommodations to employees who cannot become vaccinated. Employers also need to ensure that they comply with confidentiality requirements regarding collecting and retaining vaccination records, she added.

It’s not uncommon for regulatory laws to be vague, but in this instance that could create some confusion over what’s acceptable, according to Steven Ludwig, partner at Fox Rothschild law firm. “There is a lot of internal debate on this currently. For instance, does it mean employers should retroactively pay all the staff who have already been vaccinated [after receiving incentives]? But also it can make things uncomfortable for the employer given the primary reason to get a vaccine is to protect yourself and others, and not have them get sick,” he added.

“So why should there be some need for inducement for people to do it?”