I wrote last week about whether a SC employee can be fired for refusing to get the COVID 19 vaccination. While the answer appears to be yes (with some exceptions), the question remains as to whether companies will exercise that right to force employees to get the vaccine, or will they, instead offer COVID 19 vaccine incentives to employees to encourage them to get the vaccine of their own free will. As I noted in that prior blog post, I’ve heard anecdotally from employer-side attorneys that many of their clients want to explore the COVID 19 vaccine incentives route.
Are COVID-19 Vaccine Incentives Even Legal in South Carolina?
However, while some companies have already started offering some amount of PTO in exchange for each dose of the vaccine or offering a bonus payment for getting vaccinated, others are more wary and are waiting for guidance from the Equal Employment Opportunity Commission (EEOC). Why is that needed?
Well, the closest comparison we have to COVID 19 vaccine incentives would be the incentives that some companies offer to employees in exchange for being involved in a wellness program through work (think quitting smoking and losing weight). These programs are designed to encourage healthy living among the employees, because companies believe that they can save money if their employees remain healthy for longer. Many of these wellness programs require the employee to turn over medical information to the company so the company can track the employee’s compliance with the program’s requirements, and that type of medical information brings the ADA into play. The EEOC maintains that any incentive wellness program must be truly voluntary by the employee; otherwise, the company risks overstepping and violating the ADA. The employee cannot be coerced into handing over medical information of that nature.
At this point, companies throughout the country are awaiting guidance from the EEOC on the specific limitations and requirements for legally administering an incentives program for COVID 19 vaccines. As of April 15, 2021, the EEOC has indicated that guidance will be issued at some point in the near future, although no definitive date has been set.
Key Takeaways for South Carolina Employees
For South Carolina employees, the key takeaway here is that companies still can force you to get the vaccine, unless you have a medically-supported reason or a religiously-supported reason for refusing. However, keep an eye out for any new policies that your company may offer in the near future as incentives for getting the vaccine.
