The carrots and sticks that employers have started to use are getting sweeter and more pointed, respectively, as companies pursue a vaccinated workforce without having to issue an actual mandate. Some health insurers are buckling down on their COVID-related testing and treatment coverage in new ways, too.

As the economic benefits of vaccination increase — and as the disadvantages of an under-vaccinated workforce develop — this remains a dilemma for smaller businesses, including many HVAC contractors.

Until the Biden administration’s recent requirement for larger employers takes effect — if it even holds up in court — all employers remain on their own to sort it out.

What is clear is that pro-vaccination pressure is mounting anew from more than one source, making life especially uncomfortable for both vaccine-reluctant workers and their employers.

“Only If I’m Required”

Kate Schroder, who serves on the Cincinnati board of health and works as special advisor for her region’s vaccination rollout efforts, sees around 20% of people in her area falling into the “opposed” category, including 5% who take an “only if I’m required” attitude.

“There’s definitely a sense that employers can play a large role in that,” she said at a recent webinar hosted by the Employers Resource Association (ERA), a HARDI partner that serves employers in Ohio, Kentucky, and Indiana.

Many employers are looking for ways to preserve their level of business without having to issue a mandate. On one side of the HVAC market, MCAA general counsel John McNerney relayed reports that “in some if not many commercial markets in urban areas, owners’ mandates for vaccinated service providers are proliferating rapidly.”

Schroder has seen increased employer interest in on-site vaccination clinics, but in many places, health care labor is so overwhelmed by COVID cases in the Delta surge that there aren’t resources to staff that type of event.

Labor and HR attorney Charles Billington III of Vorys’ Cleveland office reminded attendees at the same event that it is “perfectly legal” for an enterprise to mandate vaccination for employees, as long as they carve out suitable medical and religious accommodations.

Still, the construction and HVAC industries contain many companies like Carson-Mitchell in Springfield, Missouri. In an early September Associated General Contractors of America webinar, president and COO Chris Carson said that “a lot of our workforce comes from people who are living 20 or 30 miles outside of town. They tend to have resistance to government or employers telling them what to do.”

“Honestly, the biggest motivator lately is that if you test positive, you’re out of a check for a couple of weeks, and that has changed a few minds. Not all of them by any stretch, but a few.”

In areas where there is as much work as subcontractors can handle, even that has not swayed many since it is not that difficult to make up the hours fairly quickly.

That leaves more than a few employers caught between a client base with increasingly strident vaccination requirements and a workforce that includes some fairly dug-in opposition.

Owners can do more to influence the employee side than the client side. So what should it be: carrot or stick?

The Easy Way

Emily Raaker, area vice president at Aurthur J. Gallagher Co., reeled off a brief list of incentives she has seen. Paid time off, such as a half-day to recover from vaccine side effects. Tchotchkes. Chances to win prizes or gift cards.

“PTO is a huge one,” she said. Raaker added that “people are motivated by food — throw a party, host a dinner, you’re going to know” what motivates a given workforce the best.

In the “thinking about it” realm, Raaker has clients who are considering using health savings accounts (HSA) as an incentive. IRS maximums do still apply, and “that limits what you can do for those who already aggressively fund their HSA,” she pointed out. But for those who have room left, employers can sweeten that pot to a point. Raaken reminded listeners that owners can change their HSA contributions at any time.

Owners considering an incentive should ask themselves a few questions before they jump in. Is this for employee vaccination only, or for family member vaccination, too? Does it fun afoul of any privacy requirements? Would it be for initial vaccinations or for booster shots, too? What will constitute adequate proof?

Beyond that, owners have to develop their own process and any deadlines.

Billington cautions owners and managers to be careful about any related discussion of employees’ health. He had seen a case where a manager told a couple of other managers that an employee had COVID.

While HIPAA does not apply in these environments, “that info is ADA protected, and those lawsuits are happening.”

The Hard Way

In the carrot-or-stick dynamic, the list of sticks is much longer. Raaker observed that “we are not seeing any moving of the needle with incentives. What we have heard is surcharges move the needle.”

Delta Airlines made headlines when it instituted a $200 monthly surcharge on top of health insurance premiums for unvaccinated employees. Raaker has not seen anything above $200, but she has seen others in the $100-200 range.

“It all depends on the single-employee cost of the lowest priced plan” the employer offers, she reminded attendees, because there are Affordable Care Act affordability rules about costs to factor into any surcharge decision.

She did mention that some owners have approved not passing merit increases to unvaccinated workers as another fairly hardline approach.

Shrinking Coverage

Perhaps most startling are the changes starting to develop in actual health care coverage and funding decisions. Now that COVID has moved significantly from the older population to those with employer plans, the insurer disposition is shifting.

This can start with employees who prefer a testing alternative to a vaccine.

INSURERS TIGHTEN UP: “If you’re going to be tested because you need to go to work and don’t want to be vaccinated, insurers are starting to balk at covering that 100%,” said Emily Raaker of Arthur J. Gallagher Co. (Courtesy of LukasMilan/Pixabay)

“If you’re going to be tested because you need to go to work and don’t want to be vaccinated, insurers are starting to balk at covering that 100%,” said Raaker.

Some employers have seen insurers continue covering the testing itself but stop covering the assorted office or lab charges that a medical center may commonly charge as part of the visit, leaving the employee on the hook.

Billington has seen some unvaccinated workers see a simple increase in their insurance premium. He said some clients with self-funded health insurance plans have considered the more severe step of not covering COVID-related claims at all for unvaccinated workers.

Backing down from that step a little, other employers have gone as far as removing short-term disability coverage for unvaccinated workers.

Billington explained that such a move is not discriminatory in the legal sense, because “discrimination is based on a protected class/condition that cannot be changed,” and of course, a typical worker can choose to get vaccinated at any time.

“If it’s based solely on vaccination, it’s not discrimination,” he said.

Survey Says …

Contractors trying to figure out what moves might have which repercussions for their companies have one direct option: Ask first.

Billington likes clients to ask themselves first what data points they have about their own employees.

“If I have a 60% vaccination rate, how many of the others will leave if we mandate? Even anonymous polls can be really helpful.” he said.

“This issue is so political and so sensitive, that I love the idea of anonymous surveys just to get a poll,” Raaker followed up.

“Ask people,” she encouraged, “‘What would get you to change?’ Some people are just tired of being told what to do and are not going to change their minds.”

Others might, though, and the nuances of that flexibility can steer good management decisions.

Some Excuses Better Than Others

The constant throughout all potential scenarios is the existence of medical and religious accommodations in any vaccine requirement, whether company- or government-initiated.

A client asked Billington, “Do you have to accept an accommodation request from a chiropractor?” or other possibly less relevant professional.

He replied that an owner may be able to pursue a second opinion in some cases, and that it may depend on the exact language of the written excuse. That might mean following up with the health care professional in question, asking them to articulate why they believe an exception is warranted.

“The threshold is much higher on the religious side than on the medical side,” Billington continued. The key standard for religious exemptions is whether the belief is “sincerely held.”

It is possible to have “reasonable particular doubt” about the sincerity of a religious exception that might make a difference. An attendee drew an example of an employee who posted social media photos of behavior that directly contradicts a professed claim based on a certain religion.

But generally speaking, Billington said, owners should tread carefully in that area.

He did close that topic by mentioning one other surprising maneuver available to owners who must oblige an exception and who can demonstrate burden (e.g., “our clients are requesting vaccinated workers” and/or “our vaccinated employees are requesting safe conditions”).

Under the law, Billington said, “Unpaid leave is an accommodation!”

Nobody really wants things to get to that point. At the same time, customer expectations, the risk of lost business, and insurer concerns are combining to push the interpretations of legally hefty words like “reasonable” toward a more community-based reading.

COVID vaccination holdouts with no special circumstances can always choose to leave a job. But in the coming months, many who stay may find that maintaining the status quo lands somewhere between expensive and impossible.