COLORADO, USA — Instacart Inc., Trader Joe's and Dollar General are just a few companies now offering pay incentives to encourage their employees to get the COVID-19 vaccine.
According to the Associated Press, Instacart Inc., a grocery delivery service, is offering a $25 stipend for any of their employees that get the shot, while Trader Joe's and Dollar General are offering a few hours of pay to get vaccinated.
9NEWS sat down with station legal expert and Metropolitan State University of Denver (MSU Denver) Professor Whitney Traylor as well as attorney Lorrie Ray, the director of member engagement for the City of Denver's Employers Council to discuss the legalities companies face when addressing COVID-19 vaccinations.
(Editor's note: Responses have been updated for context and clarity.)
9NEWS: Is it legal for a company to offer a pay incentive to encourage workers to get vaccinated?
Ray: It’s not necessarily illegal, but it could create legal issues. That’s the problem with some of these employment law issues, they’re not cut and dry.
There are reasons people can refuse to be vaccinated, either religious reasons or health reasons, and they would be protected under the antidiscrimination laws for either a disability or religious belief. So if you are to incentivize employees for taking the vaccine, you might be discriminating against the employees for whom taking the vaccine does not seem like an option.
Traylor: On its face, is it legal for an employer to provide pay in getting the vaccine? I think yes. I think it would be lawful. Where it gets to be a question is if someone refuses to get the vaccine with pay or otherwise, and the company terminates them, that’s when it gets a little trickier.
Can a company legally mandate employees to get vaccinated?
Ray: It can be legal to mandate; it depends on the organization and the issues involved. Obviously, in healthcare, you would have a stronger reason than you would in certain other organizations, and again you would still need to take those issues into account, if someone does have a health concern and is facing some sort of disability or if someone has a religious belief.
Traylor: Essentially, although its not clear because we don’t have a lot of guidance, the short answer is an employer can probably mandate a vaccine with the exception of religious [beliefs] and health, if it was a health issue to take the vaccine.
One issue that could come up is if an employee gets sick or has an adverse reaction from the vaccine, can the employer be liable? I would be shocked if the employer didn’t have an employee sign a release saying, 'We’re not responsible for the vaccine. You’re still taking it by your own volition but we’re paying for it. We’re paying you two hours of pay time.'
Is an employer allowed to ask you if you have received the vaccine or not?
Ray: Employers can ask if someone was vaccinated. There may be complications with that though, and so you would want to be careful if someone were to refuse to provide the information.
Traylor: The Equal Employment Opportunity Commission suggests that mandatory vaccination and requiring proof is probably OK because they’re saying it's not over intrusive and not asking for private medical information, but certainly that would probably be someone’s argument that maybe didn’t get it.
Some will argue it’s a privacy argument, but I think that, right now, the general direction is that it would be permissible to ask if they’ve gotten the vaccine.
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