The COVID-19 vaccine is finally here. For many auto dealerships, being able to advertise a workforce that is fully COVID-19 vaccinated could certainly be a competitive advantage. However, there are complications embedded in rolling out a mandatory vaccine policy. In many states, just navigating when the vaccine is going to be available to the general public is difficult. Further, employers must consider accommodations for disability and religion-based refusals to receiving the vaccine. Also, if employees refuse, for many positions integral to a dealership, employers do not have the option of simply allowing these employees to work remotely as an alternative. Finally, there is the significant issue of how to treat employees who simply refuse and the effect on employee morale of being advised that they must get a COVID-19 vaccine.
First, some employers have approached this dilemma by taking an employee survey. Different employee populations, especially depending on geography and demographics, will have vastly different reactions to whether they intend to get vaccinated. This may be a first step in determining how to handle the issue.
Next, two of the most important tools are encouragement and education. Recently, the CDC advised that it would be relying on employers to assist in educating employees about the vaccine and answering questions about the potential consequences of receiving, and not receiving the vaccine. This may be effectuated through a vendor coming into train management and educate employees or ensuring that your human resources personnel are educated and staying abreast of information about the vaccine so they may properly field employee questions.
Another option is to incentivize receipt of the vaccine. However, there is little legal guidance on this. Initially, the EEOC allowed employers to offer employees only de minimis incentives, for example a modest gift card, for participating in a wellness program, or depending on the employer’s insurance plan, they could offer employees an incentive of up to 30 percent of the total cost of coverage. Otherwise, employers were prohibited from providing significant vaccine incentives. However, the EEOC’s guidance was recently rescinded.
With the EEOC’s withdrawal of the proposed rules, dealerships are now in unregulated territory, but there is currently no prohibition. If employers do offer a vaccine incentive, they must be mindful of employees who cannot receive a COVID-19 vaccination because of religious beliefs or other medical conditions. Specifically, the ADA requires employers to provide reasonable accommodations so that employees with disabilities can enjoy the same “benefits and privileges of employment” as similarly situated employees without disabilities. Thus, if dealerships offer an incentive, they must consider allowing those employees who cannot receive the vaccine a way to also take advantage of the incentive.
Laws and guidance in this area are changing quickly and dealerships should ensure that whatever plan they choose, they consult counsel on its propriety.
ABOUT KATHARINE BATISTA
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Ms. Batista is an employment & labor attorney who provides businesses with advice and risk mitigation strategies, and zealous representation in litigation. She frequently represents businesses in the hospitality, financial services, automotive dealership, engineering and architecture and healthcare industries. Specifically, Ms. Batista successfully defends employers against claims of discrimination and harassment, retaliation, wrongful termination, and wage and hour violations. Ms. Batista also commonly represents her clients in actions involving employee mobility and trade secret theft. Employment and labor law is ever-changing. Employers need to feel secure in how they manage their employees so they can focus on their business. Ms. Batista affords her clients that security.
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