Construction workers are among the least likely of essential workers to get the COVID-19 vaccination, according to a recent study. This means construction employers might have their work cut for them if they plan on either mandating or trying to persuade employees to get the shot.

Not many construction firms are considering making vaccination a requirement, with the exception of those contractors that work in the healthcare industry, said Brian Turmail, vice president of public affairs and strategic initiatives for the Associated General Contractors of America.

“In most instances, it’s an owner mandate,” he said. “Even in those cases, contractors still have to deal with reasonable accommodation requests for those employees that find a reason to resist.”

The only accommodation, he said, would be to move them to another project if available.

The Equal Employment Opportunity Commission’s position has generally been that employers can mandate that their employees get the vaccine, but the commission also acknowledges that such a rule would require them to navigate federal laws like the Americans with Disabilities Act; the Rehabilitation Act, which requires reasonable accommodation and non-discrimination based on disability and sets out rules about when and how an employer can conduct medical examinations and inquiries; Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, national origin, religion and sex; and other federal, state and local regulations.

'A tricky issue'

Most contractors, though, are opting for a soft-yet-firm approach to the issue with policy phrasing that includes language such as “we expect you to” get a vaccination, Turmail said.

As an extra push, some contractors are considering giving employees incentives if they voluntarily get the vaccine, but what kind of incentives can contractors offer and still stay within the parameters of federal and other laws?

“That’s actually been a really tricky issue on which to advise clients,” said attorney Jill Cohen with Eckert Seamans Cherin & Mellott LLC. One of the problems, she said, is that some incentives could be considered a wellness benefit, subject to federal regulation.

In an AGC document prepared by law firm Fisher Phillips, legal professionals recommend that contractors should consider consulting with an attorney before implementing an incentive program to ensure that it does not violate EEOC regulations, HIPAA included.

The EEOC has proposed new rules that would better define what types of incentives employers could offer without, in effect, coercing them to disclose protected medical information in exchange for some reward or in order to avoid a penalty, according to the Society for Human Resources Management. The regulations would limit acceptable incentives to those considered to be “de minimis,” or minor.

“Under these proposed regulations, even a $100 gift card is considered beyond de minimis,” said attorney Melissa Salimbene with Chiesa Shahinian & Giantomasi PC. “Another concern with giving these cash bonuses is there could be wage and hour implications.”

As part of President Joe Biden’s administrative freeze on new federal regulations, however, those new rules are on hold.

More than 40 business groups and employer organizations including the AGC, Associated Builders and Contractors and National Ready Mixed Concrete Association, penned a letter to the EEOC asking for guidance about which incentives are acceptable and won’t violate the regulations that the EEOC oversees. Turmail said there is no indication as to when the EEOC will provide that guidance.

Incentive ideas

Until then, however, there are some incentives that most likely do not violate the law.

“I think the safest way for employers to do it is to allow employees to go during work time to get a vaccine and pay them up to a certain number of hours,” Cohen said.

Employers could also give employees who feel ill after getting the shot paid sick leave, keeping in mind that they might consider offering an alternative for people who can’t or won’t get the vaccine, she said. If employers don’t have a sick leave policy, then they could handle those situations as they would if an employee was sick for any other reason.

Employers who have the wherewithal might also think about hosting a vaccine clinic, Salimbene said, so that it is as easy as possible for employees to get the vaccine.

“That way,” she said, “there’s no cost, no travel, no taking time off from work.”

Many U.S. states, which have their own rollout plans, are not yet offering vaccines to the wider population and instead focusing on high-risk categories of individuals like older Americans and healthcare workers. This gives employers time to figure out how they will handle the issue of vaccinations, Salimbene said.

“Employers need to slow down, proceed with caution and take the time to discuss whatever plan they have in mind with their legal counsel,” she said.

This is also the time to educate employees on the vaccine and provide access to the latest and most accurate information, Salimbene said.

“That in and of itself is sort of a free incentive,” she said.