As 2022 is coming into view and the Covid-19 pandemic is still with us, many employers are establishing workplace policies requiring that all employees be vaccinated.  But instituting such policies raises several legal issues that complicate employers’ plans to have a fully vaccinated workforce.  We explore both the issues and the solution below, including the carrot or the stick approaches.

What Are the Legal Impediments to Employers Mandating Vaccines?

There are many laws that impact vaccine requirements.  First, employers have no legal right to make particularized inquiry about excuses employees may offer to avoid being vaccinated.  Employers cannot lawfully ask employees about their specific disabilities or their religious beliefs.  Employees are also entitled to medical privacy under the Health Insurance Portability and Accountability Act (HIPAA).  No employer can lawfully demand that an employee disclose their medical records; and the HIPAA law insulates the privacy of health information and prohibits personnel who have a need to acquire information for health insurance enrollment from sharing that information with management who supervise employees.

None of those laws would prohibit an employer from asking to see proof of vaccination, though, just as employers are required to ascertain that an employee has legal authorization to work in the United States.  Employees who have medical excuses for not being vaccinated may also be required to provide their employers with a doctor’s note but cannot require the employee to specify their underlying condition. Indeed, for those who may have congenital conditions that impact their eligibility to receive a vaccine, demanding more than a general doctor’s excuse could violate both the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

There has been a great deal of misinformation spread on social media about the ADA and HIPAA recently. No one’s rights under those laws are being violated when they are asked to show proof of vaccination. Nor is there a general “right to privacy” that prohibits employers from asking employees to provide proof of vaccination.

Can My Employer Make Me Pay More for Health Insurance if I’m Unvaccinated?

Employers can probably require employees who are unvaccinated to pay more for their health insurance.  There are no federal or state laws that mandate employer-provided health insurance.  The federal law governing employee benefits such as health insurance is the Employee Retirement Income Security Act (ERISA).  The ERISA law encourages employers to offer benefits to their employees but does require them to do so. Offering health insurance to employees is entirely voluntary; and many employers’ health plans make participation by the employees voluntary as well. If an employer does offer benefits, though, the plan that is being offered is subject to the requirements of the Affordable Care Act (ACA). Outside of certain enumerated essential benefits mandated by that law, though, employers are free to design their health benefit plans as they see fit. Moreover, employers can pass on the cost of health insurance to their employees. Most employers subsidize their employees’ premiums, though, so that only a portion of the employees’ premiums are actually paid by the employees.  The amount of the subsidy, if any, is left up to each employer.

However, if an employer chooses to offer its employees’ health insurance, a feature of the ACA aimed at improving employee health is the encouragement of employers to offer “wellness” programs. Examples of such programs are offers of free treatment for smoking cessation or free or subsidized health club membership or other incentives to encourage employees to lead a healthier lifestyle. Many employees choose to take advantage of those programs; and the result is often better-controlled chronic health conditions such as diabetes or hypertension and improved overall health, which leads to lower treatment costs and hopefully lower insurance premiums.

A major airline took the opposite approach recently by telling its employees that it was imposing a surcharge in premium costs for non-vaccinated employees. There have been numerous stories in the media about the legality of such an approach, and I was recently quoted in a Bloomberg publication which discussed the issue of measures employers can take to secure a vaccinated work force. While the airline likely can legally impose additional health such charges on employees as punishment imposed on employees who refuse to get vaccinated, the opposite approach is more likely to pass legal muster. Instead of punishing vaccine hesitant employees, employers can do the same thing that states have done to encourage vaccinations – offer incentives. Employees who have been vaccinated could be charged lower premiums. Or they could receive cash or other prizes for providing proof of their vaccination status.

The other major problem with the punitive approach is what will happen if the other airlines do not follow suit. The main reason why employers even offer benefits to their employees is that fringe benefits are a proven recruitment tool as well as a means of retaining valued employees.  If only one member of an industry group is taking a punitive approach, prospective employees will choose to work elsewhere and existing employees will become more vulnerable to recruitment by competitors.

Which Approach Is Better – The Carrot or the Stick?

The carrot rather than the stick is always the better approach.  No employer wants to have a disgruntled work force that is perpetually unhappy about punitive practices instituted by the employer. The goal is the same under either the carrot or the stick approach.  By giving employees a good enough reason to get vaccinated such as lower premiums or cash, employers can kill two birds with one stone.  They will have a happier workforce and a healthier workplace.

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