EEOC Gives a Nod to Employer Incentives for COVID-19 Vaccination
May 28, 2021
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued long-awaited guidance addressing employer incentives for COVID-19 vaccination. In short, employer incentives are generally permissible under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Key takeaways from the EEOC guidance include:
- Employers may offer an incentive to employees to voluntarily provide documentation or other confirmation of their COVID-19 vaccination obtained by a third-party (not the employer), such as a pharmacy, public health department or personal health care provider. Requesting such information would not constitute a disability-related inquiry under the ADA or an unlawful request for genetic information under the GINA.
- Likewise, an employer may offer an incentive to employees to voluntarily provide documentation of an employee’s family member’s COVID-19 vaccination by a third-party.
- Employers may also offer an incentive (including both rewards and penalties) to employees for voluntarily receiving a vaccination administered by the employer or its agent, so long as the incentive is “not so substantial as to be coercive”. The main difference between 1 and 2, is that under 2 the employer would have access to the employee’s required pre-vaccination disability screening questions and a large incentive could make employees feel pressured to disclose protected medical information to their employer.
- Note that, permissible incentives may include: a reasonable monetary stipend, a monetary stipend equal to a half or full PTO day, a grant of additional PTO day(s) to be used by the employee, required face coverings in the workplace for unvaccinated individuals, etc.
- An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a COVID-19 vaccination from an employer or its agent. However, an employer is not prohibited from offering an employee’s family member an opportunity to be vaccinated without offering the employee an incentive.
In all cases, the EEOC reminds employers to maintain evidence of vaccination status and pre-screening questions as confidential medical information.
Please contact any Robbins Schwartz attorney if you have questions about the COVID-19 vaccine and your workplace.