Time to Take a Fresh Look at Workforce Vaccination Promotion Programs?

June 4, 2021

By Alison Earles, CIPP/US, GMA Senior Associate General Counsel

The availability of vaccines to everyone 12 and over, President Biden’s call on employers to help promote vaccination, the availability of reimbursement for paid time off from April 1–Sept. 30, 2021 under the American Rescue Plan Act (ARPA), and President Joe Biden’s praise for Kroger’s incentive arrangement may cause cities to consider workplace vaccine promotion programs.

Below are common legal concerns, information to consider, and examples of how Georgia’s cities are promoting vaccines to employees. Please consult with employment counsel or the city attorney when developing a COVID-19 vaccination promotion program for employees.

Concerns about extra paid time off and other vaccine incentives: Possible discrimination against those who cannot be vaccinated; creating an “involuntary” wellness program. It is unlikely that allowing vaccinations during work hours without taking leave or getting extra sick leave to recover will be viewed as discriminatory. For monetary and vacation pay incentives, cities should offer the same incentive to those unable to be vaccinated due to medical or religious reasons after completion of an alternative activity, such as scheduling vaccines or promoting workplace masking and social distancing.

Information to consider: President Biden’s “call” to all employers and the ARPA’s provision of 100% reimbursement to most employers for paid vaccination leave granted through Sept. 30, 2021; President Biden’s public praise of Kroger’s incentive program (which includes an alternative for those unable to get vaccinated); January 2021 withdrawal of EEOC regulations prohibiting wellness incentives of more than “de minimis” value (such as water bottles); EEOC’s stated intent to issue guidance on vaccination incentives.

All cities contacted through an informal survey emphasize to employees that vaccination is voluntary.

Cities that let employees get the vaccine during work hours without taking leave: Alma, Blairsville, Brookhaven; Byron, Commerce, Decatur, Duluth, Griffin, Hinesville, Hogansville, Milton, Oakwood, Powder Springs, Royston, Shiloh, Valdosta.

Cities offering incentives upon receipt of proof of full vaccination: Woodstock ($200 gift card usable at local businesses); Acworth ($200 gift card); Hogansville ($100 gift card); Decatur (extra vacation day, raffle entry, wellness program points); Duluth (extra vacation day); Commerce (wellness program points).

Concerns about on-site vaccination clinics: possible violation of rules against medical inquiries; possible HIPAA obligations; possible workers’ compensation claims. Hosting a vaccination clinic at or near the workplace is one of the most effective ways to promote workforce vaccination. The CDC offers guidance about on-site vaccinations for employers.

A vaccination clinic that is open to the community does not become an “on-site clinic” simply because it is operated on city property or partly staffed by city employees. If a city hosts a vaccination clinic for employees and their family members only, it should document the arrangement with the partner health care provider or public health department. Pre-screening forms must be used only by health care providers or staff authorized to administer vaccines, and only to administer vaccines.

To prevent the clinic from becoming a “HIPAA covered entity,” no city employee should send electronic documentation or claims to a health insurance plan.

As with on-site flu shot clinics, if employees are encouraged to go and are paid while attending, an adverse reaction could result in a workers’ compensation claim.

Information to consider: many employers, including cities, have vaccinated employees through on-site vaccination clinics. Clinical trials and ongoing surveillance of vaccinations indicate the risk of adverse reaction to a COVID-19 vaccine is very low.

Several cities reported significant employee/family participation in city-sponsored vaccination clinics, and credited ease of access. Cities providing vaccination clinics on city property in partnership with a health care provider or department of public health include: Brunswick, Cordele, Decatur, Dublin, Griffin, Hogansville, Milton; Thomson; Valdosta, Vidalia, Savannah and Woodstock.

Concerns about privacy: Should the city know who has been vaccinated? Can employees discuss their vaccinations at work?

When offering incentives, employers may request and retain proof of vaccination or why vaccination is prohibited. Employers should not ask about underlying medical reasons. Records should be stored securely by the human resources representative (like sick/disability leave records) and the information used only to administer the incentive program.

Employees may always discuss their own vaccinations. The success of wellness programs (including those involving flu vaccines) often depends on “Champions” who discuss their participation and encourage others to participate.

Information to consider: Many individuals post about their vaccinations on social media and share information with coworkers.

GMA’s “It’s Worth A Shot” campaign encourages city leaders to share their personal experiences as a powerful vaccination promotion tool.

This story originally appeared in the May/June 2021 edition of Georgia’s Cities magazine.

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