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Employers Now Have 2 Clear Options to Provide Vaccine Incentives Thanks to New EEOC Guidance

June 01 - Posted at 4:21 PM Tagged: , , , , , , , ,

The EEOC kicked off the unofficial start of summer with a bang by clearing the way for employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical Assistance guidance now provides employers with two clear options, drawing a key distinction based on who administers the shot:

  1. If your employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you’d like with no apparent limitations.
  2. If your organization (or an entity acting on your organization’s behalf) administers the vaccine, you can still offer incentives – but they cannot be so substantial in value as to be considered coercive.

Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a clear direction to take to encourage your workers towards vaccination. What do you need to know about this critical update?

Why Was This Guidance Necessary?

Before we take a deeper dive into discussing the options and other considerations, some employers may be wondering why this guidance was even necessary. Couldn’t you just offer some cash or PTO or some other reward to induce employee behavior without concern about the legal ramifications?

The main sticking point troubling employers for months concerned wellness program rules. Historically, the EEOC has indicated it didn’t want employers to force employees to make medical-related decisions through the use of incentives. Until this latest guidance, the EEOC believed that too significant of an incentive could coerce employees to participate, thus leading to legal violations if employees are “forced” to disclose protected medical information to gain the incentive. Through rules, guidance, and federal litigation, the EEOC has taken steps to ensure that any employment decisions in this regard were genuinely voluntary.

Earlier this year, the EEOC issued a proposed rule expressly permitting only de minimis incentives as passing muster under participatory wellness programs. The proposed rule contained language referring to a permissible incentive as a “water bottle” or something of equivalent value. However, the Biden administration withdrew the proposed rule under a regulatory freeze typically seen when new leadership takes charge at the White House. The proposed rule is still pending review and it is unclear when or what form it may re-emerge. Against the backdrop of this uncertainty, employers have been attempting to navigate the thorny path of vaccine incentives, concerned that offering robust incentives could bring about a higher legal risk. At the urging of business groups seeking clarity on the matter, the EEOC finally heeded the call and provided the certainty that employers have been craving.  

Option 1: Unlimited Incentives

Under the first option, you are seemingly permitted to provide unlimited incentives to your workforce so long as your employees voluntarily provide you with documentation or other confirmation they received the COVID-19 vaccine, and they received the vaccination on their own from a third-party provider that is not an “agent” of your organization. The EEOC describes such third parties as pharmacies, public health departments, or other health care providers in the community.

Option 2: Restricted Incentives

On the other hand, if employees are voluntarily vaccinated by you or your “agent,” you can offer only incentives that are “not so substantial as to be coercive.” Which leads to two questions: what is an “agent,” and how substantial is “substantial”?

Definition of “Agent” and How to Avoid This Designation

  • The EEOC guidance defines “agent” as being an individual or entity having the authority to act on behalf of, or at the direction of, the employer (which could include an onsite nurse, onsite medical staff, and perhaps beyond).  
  • The agency further notes that the purpose for this distinction is that it would prefer employers to stay as far away from employee medical examinations as possible, and administering vaccines requires necessary pre-shot screening questions that could reveal information it would rather you not obtain. “When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic,” the EEOC says, “the employer is not asking a question that is likely to disclose the existence of a disability.” Of course, care should continue to be taken not to ask follow-up questions such as why the employee has not been vaccinated or whether the employee suffered side effects of the vaccine.
  • Thus, to avoid the incentive limitation that arises in such a situation, you would want to do everything you could to keep a wall up between you and the healthcare provider offering the vaccines – especially if you are setting up a vaccine clinic at your worksite to make it as easy as possible for your workers to get inoculated. Unnecessary entanglements could arise if you gather medical information about your employees, assist with screening questions, or include an onsite nurse or other medical staff members to aid the healthcare provider in administering the shots. In a perfect world, you would limit your involvement to setting up a sign-up link to organize the schedule and giving your vaccine provider access to the information generated by the link. The “sign up” link and employee-facing communications should be self-serving in this regard. You could even state in the sign-up link that “Your responses cannot be shared with anyone, including your employer, without your authorization. This form is not such an authorization.” You may also want to consider an arms-length written agreement with the vaccine provider confirming that it does not have the authority to act on your behalf or at your direction.

Definition of “Substantial” and How to Avoid Violations

  • But if your organization or your agent is administering the vaccine, and you are interested in offering incentives, you will need to carefully thread the needle between offering a strong enough incentive to encourage employees but one not so strong that it could be considered coercive. You will want to tip the scale to help employees to choose to get vaccinated without twisting their arms.
  • Unfortunately, the EEOC does not provide detail or a definition regarding what might be considered too substantial, leaving you to navigate this terrain based on your own comfort and risk tolerance level. And this is not a term of art that the EEOC has often – if ever – used in this context. It appears that the term “substantial” would permit you to offer incentives at some level higher than a de minimis amount – higher than the “water bottle or its equivalent” level typically associated with incentives – but there is no clear answer about where to draw the line.
  • A rule of thumb to keep in mind: the higher the value, the greater the risk your program will be seen as unnecessarily coercive and therefore in violation of the EEOC’s rules. There are a number of factors to consider when making this determination, including your geographic location, your industry, the median pay of your workforce, and other relevant factors.

Other Considerations

Whichever path you take, there are several other considerations to keep in mind when offering vaccine incentives based on voluntary inoculations.

Accommodations

Some employees may have legitimate medical or religious reasons not to get vaccinated, and failure to provide them with the same types of incentives could lead to claims under the Americans with Disabilities Act (ADA) or Title VII. You will need to consider offering alternative means by which an employee can earn an incentive if they cannot be vaccinated due to a disability or sincerely held religious belief. Alternative ways to earn the incentive might be watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in the workforce.

Confidentiality

Once you gather information from employees about whether they have been vaccinated or not, you must maintain confidentiality. You should maintain the records as you would any other medical-related documentation (in a separate file, accessible to only those who need to know, etc.) and comply with all other state-specific privacy rules (such as in California).

Family Members

While you can offer an incentive to employees to provide documentation or other confirmation from a third party not acting on your behalf that their family members have been vaccinated, the EEOC confirmed that you may not offer incentives to your employees in return for their family members getting vaccinated by your organization or your agent. This would be considered a violation of the Genetic Information Nondiscrimination Act (GINA) Title II health and genetic services provision. Asking pre-screening medical questions would lead to you receiving genetic information in the form of family medical history of the employee, and GINA regulations prohibit employers from providing incentives in exchange for genetic information. However, you can still offer an employee’s family member the opportunity to be vaccinated by your organization or your agent if you take certain steps to ensure GINA compliance. 

Possible Incentives to Consider

If you are now considering what kind of incentives to offer your workforce in light of this new guidance, you might find comfort knowing that employers’ two most common incentive options include cash/gifts (38%) and paid time off (30%). This is according to an FP Flash Survey conducted earlier this year, which found that more than one in five employers were providing vaccine incentives. That number is bound to rise given that close to half of all respondents (43%) said they were unsure about whether to offer some form of incentive, many commenting that the then-current legal uncertainty fueled their hesitancy.

 

Gonna Have To Face It We’re Addicted to…Everything?! Digital Addictions In The Workplace

April 18 - Posted at 3:00 PM Tagged: , , , ,

Cell phones. Video games. YouTube. TV. iPads. Kindles. Online Gaming. Netflix. Hulu. Amazon Prime. Stream, click, stream, repeat.

As the years go on, so too does the list of things to which people become addicted. Emerging front and center as a relatively new but common modern addiction—to which employers are having difficulty responding—is the concept of a digital addiction. A digital addiction, also referred to as a gaming addiction, internet addiction, smartphone addiction, and/or social media addiction, is more than a mindless but incessant checking of one’s cell phone, more than browsing Facebook while taking a break from company-focused work. It is a complete disruption to and dysregulation of the daily life of an individual, due to compulsions to engage in the addictive and cyclical behaviors.

Digital Addictions

Like other, better understood addictions, a digital addiction essentially renders an “addict” unable to perform a major life activity, such as sleeping, eating, or, better yet, working. Although the behaviors themselves (use of electronic devices) may seem more benign than drugs, alcohol, or sex, the personal impact is no less severe.

And perhaps even more concerning is the fact that digital addictions can be hard to spot and even harder to stop: we live in a day and age that virtually necessitates constant and unwavering digital and electronic connection. Behaviors that may be dangerous for a minority of the population with a digital addiction are entirely socially acceptable for the majority of individuals, rendering the line between an addiction and a habit blurrier than ever. 

Organizations worldwide have begun conducting investigations and research into the impact of a digital addiction upon both the quality and productivity of life. Despite the fact that these studies are in the early phases, the results ought to be taken seriously, as they mirror those of better understood addictions.

By way of example: a high school student reported being unable to live without his cell phone and used it so frequently that he became hospitalized due to lack of exercise and movement. While in the hospital, he was told he had the lungs of someone nearly four times his age—the direct result of an addiction to his phone at the expense of other, healthier coping mechanisms. Multiple recent deaths in South Korea have been directly blamed on an incessant addiction to gaming, as the victims lost track of the real world and their personal needs. And, for the first time in 28 years, the World Health Organization has gone so far as to revise its International Classification of Diseases. What made the cut? “Gaming disorder,” a sub-type of a disorder arising from behavioral addictions.

Treatment For Digital Addictions

As the prevalence and understanding of digital and gaming addictions rises, so too does an understanding of the disorder and its treatment. Rehabilitation facilities are developing specialized tracks focusing on gaming addictions. One such center is The Edge, located in Thailand, touting its programs designed to break digital addictions, treat the root causes leading to the addictive behaviors, and reprogram and repair relations to the digital world and its technology. A Place of Hope in Washington State boasts another similar program, as do countless centers from California to Florida. Although this addiction is not yet recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), treatment programs are seeing the growing need for programs specifically tailored to digital and gaming addictions.

As with other addictions, a digital or gaming addiction often arises out of feelings of discontent, stress, pressure, anxiety, depression, or other underlying mental health conditions. The co-occurrence of one or more disorder is often present, making the addiction more difficult to treat. Similarly, and as with other addictions, the behaviors (here, gaming or compulsive use of the internet) are but a symptom of a deeper cause; typically, the behavior itself serves to either avoid, ignore, or “numb out” from more complicated inter and intrapersonal issues. In other words, the presentation itself may not be the cause, but the presentation may be the first behavior to “fix.”

What Does This Mean For Employers?

What does this mean for you as an employer? The Mental Health Parity and Addiction Act of 2008 requires health insurers and group health plans to provide parity between its coverage of mental health treatment and medical or surgical care, a dramatic shift that allowed hundreds of thousands of individuals to seek the mental health treatment they so desperately needed. It increased the prevalence of treatment facilities and rehabilitation programs focusing on a variety of mental health issues, as they are now able to receive funding through insurance companies when treatment otherwise would not be covered.

Although a digital addiction may not officially be recognized in the DSM-5, that does not make it any less severe or serious. Furthermore, because individuals often have co-occurring disorders or conditions, it is likely that an individual with a digital addiction may also be suffering from at least one other mental health condition. This, in turn, increases the chance that they would be accepted into a treatment program funded by their health insurance.

In recent years, employers have come to understand their obligations related to mental health issues and disabilities; employees are to be granted reasonable accommodations for mental health disorders the same as they would be for a physical disorder or illness. This includes, when applicable, leave to attend treatment on an inpatient, partial hospitalization, intensive outpatient, or outpatient basis under federal laws like the Family Medical Leave Act or Americans with Disabilities Act, as well as state laws, like the California Family Rights Act and California’s Fair Employment and Housing Act. What, then, is an employer’s obligation if an employee exhibits a digital addiction?

It is prudent to accommodate an individual with a digital addiction the same way you would accommodate any other individual: engaging in the interactive process, and reviewing and discussing any restrictions, limitations, or accommodations that may be needed. While there may be concerns regarding an employee’s ability to return to work in the digital age after receiving treatment for a directly related addiction, this concern cannot be used as a basis to engage in an adverse action against an employee.

This remains the case even if the disorder is not officially “diagnosable.” In other words, an employer must take a digital addiction seriously, even if it does not understand the addiction or personally believe the addiction is legitimate.

Where Do We Go From Here?

For now, there are several best practices employers can use concerning digital addictions. An up-to-date compliant handbook with policies addressing leaves and accommodations goes a long way. A handbook creates the foundation for your policies and procedures. If your handbook is wrong, or if you (gasp) do not have a handbook at all, your internal policies and procedures are much more likely to be problematic and subject to tougher scrutiny.

Your handbook also needs to be acknowledged by your employees. You can use an employee’s acknowledgement to show they were well aware you were more than willing to reasonably accommodate them and welcomed any and all accommodation requests.

Document, document, document. We cannot say it enough: document notice of an employee’s alleged disability; meetings and communications discussing the alleged disability; and requested, offered, or denied accommodations. This helps paint a picture that you took the alleged disability seriously and tried to reasonably accommodate. Without documentation of this interactive process, it may as well have never happened.

Train your managers and supervisors. They can make or break your defense. They typically receive notice of an alleged disability or requested accommodation first. If they fail to take this seriously and begin the interactive process, your defense can be severely undermined. They need to know what constitutes “notice,” that the company has interactive process obligations, and how to handle accommodation requests.

Not so fast…do not be too quick in denying accommodations (even if you want to).  The law requires that you participate in a “good faith” interactive process, which means considering each and every possible reasonable accommodation in “good faith.” Document any legitimate reasons why an accommodation may not be “reasonable,” but understand that not everything is “unreasonable.” While employers do not have to provide accommodations that are unduly burdensome, “undue burden” is an extremely tough standard to meet and is looked at primarily in financial terms by courts. So, unless a particular accommodation costs you some serious money, results in a loss of serious money through disruption to your operations, or is a direct threat to the health and safety of others, you are probably going to have to provide it.

Watch the timing of adverse actions. Retaliation claims are on the rise and are currently the number one charge filed with the Equal Employment Opportunity Commission. Retaliation largely focuses on timing – how long after an employee engaged in “protected activity” (like requesting a reasonable accommodation) did they suffer an “adverse action” (like termination). The closer in time, the more retaliation seems plausible. To combat this, make sure you properly manage bad employees, have the documentation to support your story, and terminate as soon as termination is legitimately warranted.

Finally, stay up-to-date on changes in the law concerning digital addictions. A critical part of avoiding future claims is being aware of your ever-changing legal obligations. 

Conclusion

The times continue to change, and so too does our understanding of modern addictions. Video conferencing and cloud hosting have begun to replace in-person meetings and file rooms. iPads and tablets have begun to replace notebooks and pads of paper. Cell phones have rendered landlines all but obsolete.

Although new technology may be initially feared, with time comes understanding. This age-old maxim holds true with respect to digital and gaming addictions, as well: although it may not be well known as of present, awareness begets recognition, and recognition begins understanding. Patience, an open mind, and a good labor and employment attorney will take care of the rest. 

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