[NCASG] [External] Incentives for receiving the COVID-19 Vaccine

Mon Mar 29 06:15:49 MDT 2021

Hello!

The State of West Virginia is not currently offering an incentive for those who plan to get the vaccine.  More information on this and on how the State will handle the situations with employees who will not be receiving a vaccine, either for religious or medical reasons, are detailed below from our Employee Relations Section of the Division of Personnel.

The state of WV has provided agencies the discretion to implement policies and procedures in accordance with the needs of the agency's business.

The Equal Employment Opportunity Commission (EEOC) website provides, an employer may ask if an employee has been vaccinated.  However, there are confidentiality and liability risks associated with doing so.

Simply requesting proof of receipt of a COVID-19 vaccination is not likely to violate EEOC restrictions on disability-related inquiries and medical exams. However, subsequent questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and be subject to the applicable ADA standard that the inquiry is "job-related and consistent with business necessity."

Also, there is some risk associated with learning who is and is not vaccinated since it can be a decision made on protected status. Under the ADA and Title VII, an employee may be entitled to an exemption from a mandatory vaccination requirement based on a medical condition, disability, or sincerely held religious belief. Knowledge of an employee's protected status may increase their risk for discrimination complaints.

Prior to implementing policies or programs that would require asking and/or requesting proof of vaccination, the Division of Personnel (DOP) is advising state agencies to consider the following;

  *   The ADA and Title VII of the Civil Rights Act of 1964 prohibits employers from compelling employees to take the COVID-19 vaccine regardless of their medical conditions or their religious beliefs during a pandemic.
  *   Will requiring employees to provide their vaccination status, refusal, or inability to be vaccinated be viewed as compelling, especially if an employee fears they may become subject to retaliation or discrimination based on their status?
  *   What is the intent behind acquiring the knowledge? Will knowledge of an employee's vaccination status affect the conditions of their employment, such as job duties or physical location?
  *   An employee's response regarding vaccination is considered confidential medical information. How does the agency intend to secure the physical and/or electronic information as well as any unintended disclosure among staff?

In the case of incentive programs, I think it would be important to consider whether withholding the incentive will give the appearance of discrimination toward individuals with disabilities or sincerely held religious beliefs. The following link discusses some of these concerns Employer Covid-19 Vaccine Incentives—A Difficult Dilemma (bloomberglaw.com)<https://news.bloomberglaw.com/daily-labor-report/employer-covid-19-vaccine-incentives-a-difficult-dilemma> and a January 7, 2021 announcement from the EEOC. EEOC Provides Proposed Wellness Rules for Review | U.S. Equal Employment Opportunity Commission<https://www.eeoc.gov/newsroom/eeoc-provides-proposed-wellness-rules-review>.  The proposed rule was "frozen" in the rule-making process on January 20, 2021, for failing to meet the sixty-day deadline but is still under consideration.

Thank you, I hope this helps!

Amy F. Hayes, M.A.

Human Resources Specialist 1

Classification and Compensation

WV Division of Personnel

Phone: 304.414.0820
Address: WV State Capitol Complex, Building 3, Suite 500

1900 Kanawha Boulevard, East

Charleston, WV 25305

Email: amy.f.hayes at wv.gov<mailto:dori.b.mcdonough at wv.gov>

Website: www.personnel.wv.gov<http://www.personnel.wv.gov/ohrd>

________________________________
From: Sunderland, Dori B <Dori.B.Sunderland at wv.gov>
Sent: Wednesday, March 24, 2021 8:39 AM
To: Hayes, Amy F <Amy.F.Hayes at wv.gov>
Cc: Mays, Wendy A <Wendy.A.Mays at wv.gov>
Subject: Fw: [External] [NCASG] Incentives for receiving the COVID-19 Vaccine

I'm assigning this survey to you too since it's along the same lines.

Dori B. Sunderland, M.S.

Human Resources Manager

Classification and Compensation

WV Division of Personnel

Phone: 304.414.0854
Address: WV State Capitol Complex, Building 3, Suite 500

1900 Kanawha Boulevard, East

Charleston, WV 25305

Email: dori.b.sunderland at wv.gov<mailto:dori.b.mcdonough at wv.gov>

Website: www.personnel.wv.gov<http://www.personnel.wv.gov/ohrd>

________________________________
From: Malatesta - DPA, Brandy <brandy.malatesta at state.co.us>
Sent: Tuesday, March 23, 2021 5:03 PM
To: NCASG (dhr_ncasg_survey_list at admws.idaho.gov) <dhr_ncasg_survey_list at admws.idaho.gov>
Subject: [External] [NCASG] Incentives for receiving the COVID-19 Vaccine

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Good Afternoon!

I know many of us are still awaiting additional guidance from the federal government but are any other states planning to offer an incentive for getting the vaccine?

If so, do you know what you plan to offer?  Also, how will you handle employees who are not getting the vaccine due to things such as religious practices?

Thanks so much for your input!

Brandy B. Malatesta, MPA, CCP, SHRM-CP
Senior Manager, Compensation
[https://docs.google.com/uc?export=download&id=1a7JfX9rVFkPZFgFz2v3Owh-sj8J_y5jO&revid=0B3EBVOrCqN5dUHJoZTRsbFRlRCtyc1NsM24xS2YzYm9LbmxnPQ]
P 303.866.5383  |  C 303.919.0507
1525 Sherman Street, Denver, CO 80203
brandy.malatesta at state.co.us<mailto:brandy.malatesta at state.co.us>  |  dhr.colorado.gov<https://urldefense.proofpoint.com/v2/url?u=https-3A__dhr.colorado.gov_&d=DwMFaQ&c=sdnEM9SRGFuMt5z5w3AhsPNahmNicq64TgF1JwNR0cs&r=r-1Qto1KbmOT9IuFKjdCBe1cwNsjdWPwQASiVTuh1uU&m=OPL1RHuSgzYdRSeFYoCXT9N8yYevO3TfVARXQsqAwbs&s=09M7SNLAh31w3-4ZHHSjv2UtPgA0FBiyNG7N_vP35Tw&e=>  |  careers.colorado.gov<https://urldefense.proofpoint.com/v2/url?u=https-3A__careers.colorado.gov_&d=DwMFaQ&c=sdnEM9SRGFuMt5z5w3AhsPNahmNicq64TgF1JwNR0cs&r=r-1Qto1KbmOT9IuFKjdCBe1cwNsjdWPwQASiVTuh1uU&m=OPL1RHuSgzYdRSeFYoCXT9N8yYevO3TfVARXQsqAwbs&s=dRn-jveEDZqpO67GYNM0MguqVYwLkz_EgCU_7y1QF2A&e=>

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