Legal Blog

Alternatives to Vaccine Mandates for Auto Dealerships

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 However, the EEOC’s guidance was recently rescinded.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

kbatista@offitkurman.com | 267.338.1319

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.

 

 

 

 

ABOUT OFFIT KURMAN

At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we focus on furthering our clients’ objectives and provide timely services and within budget, all while focusing on the clients’ interests and goals.

Offit Kurman is one of the fastest-growing, full-service law firms in the United States. With over 230 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well-positioned to meet dynamic businesses’ needs, as well as the needs of the people who own and operate them. We also provide representation of individuals and families in diverse matters ranging from estate planning and asset protection to intellectual property structuring and entrepreneurial start-ups. Our International Group provides clients with a broad range of services for transactions and dispute representation for clients worldwide, including Europe, Canada, Asia, Latin America, the Middle East and Africa.

At Offit Kurman, we distinguish ourselves by the quality, breadth, and global reach of our legal services — as well as our unique operational structure, which encourages a culture of collaboration and entrepreneurialism. The same approach that makes our firm attractive to legal practitioners interested in representing clients in the middle market, also gives clients access to experienced counsel in almost every area of the law and in many jurisdictions in the U.S. and abroad

Subscribe and follow us on our Blog, and on Facebook, Twitter, Instagram, YouTube, and LinkedIn. You can also sign up to receive LawMatters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.

DELAWARE | MARYLAND | NEW JERSEY | NEW YORK | NORTH CAROLINA | PENNSYLVANIA |SOUTH CAROLINA | VIRGINIA | WASHINGTON, DC