Vaccine Incentive Policies in the Local Government Workplace

Editor’s note: This blog was updated on June 16, 2021, with additional information regarding prohibitions in the Washington State Constitution that could complicate a workplace-based vaccine incentive program.

For information on mandatory COVID-19 vaccination policies, see our blog post COVID-19 Vaccination Requirements in the Local Government Workplace.

The pandemic has changed the way we work. Remote work has been a success in many ways, and many local governments are planning for a different office configuration in the near future by shrinking their in-person presence and allowing more remote work opportunities. Despite this increased remote presence, the reality is that many Washington local government employees will soon be expected to return to the workplace in-person, and that return raises questions about employee vaccination policies.

Prior to returning to the in-person office, local governments need to be clear on their policy for employee vaccinations. Earlier this year, I wrote a blog post exploring the legalities of mandatory vaccination policies in the local government workplace. (Short answer: yes, they do appear to be  legal, although we are aware of one lawsuit challenging their legality). Despite the legality of these programs, many local governments are declining to adopt a mandatory vaccination policy and focusing their attention on providing incentives to encourage employees to get vaccinated against COVID-19. This blog advises on how to properly approach vaccine incentive policies.

So Many Questions…

MRSC is getting many questions about vaccine incentives, so I will review a few broad issues.

Are employee vaccine incentive policies allowed?

Yes, they are. The Equal Employment Opportunity Commission (EEOC) updated its technical guidance in May 2021 to make it clear that vaccine incentive policies are permissible. Similar to a mandatory vaccine policy, the incentive policy should accommodate those who cannot take the vaccine because of disability or religious objection and should provide alternative ways for the employee to obtain the incentive. For example, the employee could be subject to regular COVID-19 testing or be required to watch a COVID-19 safety video if they are unable to take the vaccine.

What type of incentives can be offered?

While other incentives are available (including a one-time cash payment), the most popular one for Washington local government appears to be additional paid time off. Local policy examples include the following:

• The City of East Wenatchee’s policy, which offers four hours of vacation time for receiving the vaccine.
• Spokane Transit’s policy, which provides two hours of paid time for each of the two doses of the vaccine, up to four hours total.
• The City of Issaquah’s policy, which provides eight hours of leave, to be taken on July 2, 2021 (called a “city closure day,” but only for those who are fully vaccinated).

Another obvious incentive for fully vaccinated individuals is the ability to go maskless, either indoors or outdoors, unless local rules require otherwise. (Some counties still have indoor mask directives in place for both vaccinated and unvaccinated individuals. For example, King County still strongly encourages all county residents, whether vaccinated or not, to continue wearing masks in indoor public areas.)

Individuals who are not fully vaccinated must continue to wear masks indoors pursuant to the Washington Department of Labor and Industries’ revised workplace safety and health guidance, which states that “[i]f an employee is not fully vaccinated or their vaccination status is unknown, employers must continue to require masks and social distancing.”

Note that the EEOC cautions employers against offering ‘very large incentives’ if the employer administers the employee vaccine themselves (as opposed to a pharmacy or other third party) because employees may be coerced into participating and disclosing medical or disability information in violation of the Americans with Disabilities Act (ADA). This issue can be avoided by the employer not directly offering the vaccine.

Some cities — namely Seattle — are taking their vaccine incentive programs one major step further by offering vaccine incentives to members of the public. The city is locating pop-up vaccination clinics on the premises of private businesses and then is partnering with those local businesses to offer a freebie (e.g., free beverage or treat from partner businesses). 

A few legal issues agencies will want to consider when developing their vaccine incentive programs are: 1) the prohibitions against retroactive pay increases under Article 2, Section 25, and 2) the gift of public funds in Article 8, Section 7 of the state constitution.

In a nutshell, Article 2, Section 25 prohibits an agency from providing extra compensation to an employee after services are rendered, and the prohibition against gifting public funds (Article 8, Section 7) prevents agencies from giving a gift to a private party. These two issues should be considered when deciding whether to provide an incentive to an employee who was vaccinated prior to adoption of the agency’s vaccine incentive policy.

My take on this is that the retroactive pay issue in Article 2, Section 25 shouldn’t be a concern because getting a vaccine and participating in an agency’s vaccine incentive program doesn’t equate to “services” rendered. The gift of public funds issue is a little less clear, although the Washington State Attorney General’s March 2020 memo did provide that:

In general, constitutional restrictions on the use of public funds should not be an impediment to state and local efforts to combat COVID-19, because expenditures being made in furtherance of this effort in this time of crisis further fundamental public purposes, such as protecting the public health and welfare.

While vaccine incentive policies were not top-of-mind when the attorney general wrote the memo in 2020, this reasoning may help defend a vaccine incentive policy that allows those vaccinated prior to the policy’s adoption to also receive the incentive. Agency counsel should carefully consider the drafting of a vaccine policy to protect the agency against a potential gift of public funds problem. MRSC’s webpage on gift of public funds provides more information on this prohibition

Given that more than 50% of Washingtonians 16 years or older are fully vaccinated, another option is to expand the incentive policy to include booster shots that will likely be needed for COVID-19 and potentially other vaccines as well. That way, individuals who have already received the vaccine have an opportunity to receive an incentive for future boosters or other similar vaccines like the flu.

Can I require proof of vaccination status to confirm incentive eligibility?

In order to properly provide the incentive, a local government employer will need to confirm vaccination status. The EEOC’s guidance makes it clear that the employer may ask for proof of vaccine status without violating the ADA because asking an employee to voluntarily show proof of vaccination is not a disability-related inquiry covered by the ADA.

How should I manage records showing proof of vaccination status?

An employer is not required to actually receive a copy of the employee’s vaccination card; Instead, they can request the employee simply show them their vaccination card (and the employer makes a separate notation about vaccination status) or submit an affirmation that the employee has been vaccinated. Spokane County has developed a helpful vaccination attestation policy.

The record showing proof of vaccination must be kept in a separate location from the employee’s personnel file — See 29 CFR 1630.14(d)(4)(i). Proof of vaccination status is confidential and not subject to public disclosure. In section K of the EEOC guidance, confidentiality is explained as follows:

The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

If the local government receives a public records request for employee vaccination records, the local government should cite to the ADA at 42 U.S.C. § 12112(d) to withhold those records. [See also 29 CFR 1630.14(c)(1)].

For a belt and suspenders approach, the agency can also cite RCW 42.56.230(3), which exempts personal information in files maintained for employees, to the extent disclosure would violate the employee’s right to privacy.

Conclusion

In lieu of a mandatory vaccination policy, adopting a vaccine incentive policy is the next best option for offering a safe workplace for employees.

As we have seen from the modified federal and state guidance on masks and vaccines, things to continue to evolve. We will continue to follow recent developments in this area and keep our readers informed of any updates.