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Apr 15, 2021

Q&A: Voluntary vaccine incentive programs may cause discrimination

COVID-19DisabilityHarassment & DiscriminationSafety and Health 

Question: We’re offering workers a bonus if they voluntarily get a COVID-19 vaccination, but some workers say they don’t want to get it because of religious beliefs or disabilities. If we don’t pay those workers the bonus, are we liable for discrimination?

Answer: Yes, but by adjusting your incentive plan, you can encourage voluntary vaccination without violating the law. If you pay some workers a bonus for voluntarily getting a COVID-19 (coronavirus) vaccination but don’t pay the bonus to others who opt out because of sincerely held religious beliefs or medically documented disabilities, you will violate federal and state anti-discrimination statutes. (In addition, workers in Oregon may be able to claim a violation of Oregon’s equal pay law, which includes religion and disability status among its protected categories. Oregon’s Bureau of Labor and Industries has said a vaccine incentive, even in the form of a one-time bonus, may violate the state’s equal pay law if it results in pay differences between people based on their religion or disability status.) Similar claims may arise from granting other types of rewards, such as gift cards or extra vacation time, to employees who choose to get vaccinated but not to employees who opt out for protected reasons.

But that doesn’t mean you can’t offer voluntary vaccine incentives; it just means you must distribute the bonuses (or other rewards) in a way that avoids disparate treatment for people who don’t get vaccinated for protected reasons (e.g., because of disabilities or sincerely held religious beliefs). To avoid the potential for discrimination claims, consider alternative structures for your vaccine incentive program that give everyone the potential to earn the award. If you intend to reward employees with individual bonuses for getting vaccinations, one idea is to offer alternative activities to employees who opt out because of disabilities or sincerely held religious beliefs, such as participating in COVID-19 (coronavirus) prevention and safety training, or using company-provided materials to create care packages for front line workers or responders. Another idea is to reward all employees once a certain percentage of the workforce is either vaccinated or has affirmatively opted out because of a disability or sincerely held religious belief, rather than offer individual awards.

For the disability opt-out, you may require a simple statement from a health care provider confirming that they have advised the employee not to get the vaccine, without revealing the nature of the medical condition. This ensures that these employees have a valid medical reason for not getting vaccinated, as opposed to merely having a general fear or reluctance to do so. For the religion opt-out, you may be able to make similar inquiries under federal and state laws, but do so delicately and in consultation with your Vigilant Law Group employment attorney. In either situation, you may also simply choose to accept an employee’s assertion without requiring proof.

As we previously reported, voluntary vaccination incentive programs may also implicate federal rules regarding wellness programs, in addition to raising the issues described above. Additional concerns may arise when employers sponsor a COVID-19 vaccination program (i.e., provide vaccines to employees either directly or through a third party) or impose mandatory vaccination programs, as opposed to voluntary vaccination incentive programs. Generally, employment law as it relates to COVID-19 vaccinations for employees – voluntary or mandatory – is a moving target, and may change in the short-term. We will update you in our newsletter if and when that happens. Contact your Vigilant Law Group employment attorney with questions.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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