On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance, entitled, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws to include, among other things, guidance regarding the use of incentives to encourage vaccination. The EEOC’s guidance provides that employers may offer incentives to employees to be vaccinated and clarifies the implications under the American’s with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).
A new FAQ (#K.16) addresses providing incentives to employees whose vaccine is/was administered by a third-party, in which case, an employer may offer unlimited incentives to employees who provide proof that they received a vaccine from a “non-employer sponsored” provider. “Non-employer sponsored” providers include health departments, pharmacies, health care providers, etc. The EEOC’s reasoning is that simply providing an incentive for an employee to voluntarily provide proof of vaccination received from a third-party is not a disability-related inquiry; therefore, the ADA’s limits on incentives are not implicated. As stated in the EEOC’s prior guidance, it should be noted that employers who require documentation of vaccination status must keep this information confidential as required by the ADA.
In another new FAQ (#K.17) the EEOC addresses providing incentives to employees who are receiving a vaccination via an “employer-sponsored” program. “Employer-sponsored” programs will not violate any equal employment opportunity laws, if the incentives are “not so substantial as to be coercive”, such as mandating employees to receive the vaccine from the employer or someone with whom the employer contracted. Under the ADA, incentives cannot be so large as to pressure employees to reveal their medical information in response. The EEOC cautioned that a “very large incentive” could make employees feel compelled to disclose protected medical information.
The guidance also addresses requiring employees or employees’ family members to provide documentation of having been vaccinated and its implications under GINA which restricts medical inquiries about family medical history by employers. The EEOC concluded, an employer may offer an incentive to employees to provide documentation or other confirmation from a third-party (not acting on the employer’s behalf), such as a pharmacy or health department, that they or their family members have been vaccinated. The reasoning is that this not an unlawful request under GINA as the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member, nor is it any other form of genetic information.
The guidance also states that it would not be a violation of GINA for an employer to offer an incentive to employees in exchange for the employee getting vaccinated via an employer sponsored program as the pre- screening questions for the three available COVID-19 vaccines do not inquire about genetic information. However, this guidance does not extend to family members. The guidance makes clear that employers cannot provide any incentive to employees for family members receiving a vaccine through an “employer-sponsored” program as it may increase the likelihood that employee genetic information may be provided, as it “would require the vaccinator to ask the family member pre-vaccination medical screening questions, which may include medical questions about the family member”, resulting in a violation of GINA. In addition, employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated. But employers may provide family members with the voluntary opportunity to become vaccinated through an “employer-sponsored” program without incentives to the employee if certain conditions are met, including the vaccine being voluntary, maintaining confidentiality of medical information, and obtaining written authorization from said family member(s).
The updated guidance also affirms and/or clarifies previously issued guidance including mandatory vaccination policies, reasonable accommodations for disabilities and/or sincerely held religious beliefs and direct threat analysis for unvaccinated individuals.
Next Steps for Employers
Employers are encouraged to review the updated guidance which can be easily located by looking for FAQs with a date of 5/28/21. Employers that decide to offer vaccination incentives to employees for receiving a COVID-19 vaccine must provide reasonable accommodations to those employees who cannot receive a vaccine because of existing medical conditions or religious beliefs as required by the ADA and Title VII. To reduce claims of discrimination, employers may want to offer these employees another way to earn the incentive, such as attending a COVID-19 safety class.
It is also recommended that prior to rolling out an incentive program that employers consult with their legal counsel to prevent any unintentional claims of discrimination as well as to receive guidance on any potential conflicts with other federal, state and local laws.