Employers may be interested in requiring or incentivizing their workforces to get vaccinated against COVID-19 in order to help curb the potential spread of the virus in the workplace. Before undertaking such a program, employers should stop and think about the legal considerations that will influence how such programs are structured.
There may be exceptions to mandating vaccines under federal, state and local laws for certain individuals with disabilities and sincerely held religious beliefs which may prevent those employees from receiving the vaccine. When an issue of disability or religious belief arises, this will trigger an interactive dialogue with the employee, including consideration of accommodation and direct threat issues.
Some employers have adopted or are considering a non-mandatory approach involving incentives for employees to get vaccinated. Depending on the design of the incentive program, it may implicate the EEOC’s approach to wellness programs and the need to accommodate employees who cannot get the vaccine for a legally protected reason. It also may have wage and hour implications. Incentives also may implicate the duty to bargain for unionized workforces.