On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19 vaccination and discrimination law. Specifically, EEOC stated that employers can offer employees incentives, economic or otherwise, to obtain a COVID-19 vaccination.
As we reported previously, the EEOC has already issued some guidance relevant to COVID-19 vaccinations. For example, the EEOC has said employers can mandate COVID-19 vaccination, subject to the duty of reasonable accommodations for employees or applicants who are unable or unwilling to get a vaccine due to a protected disability or legitimately-held religious belief. The EEOC has also said that employers can inquire of employees whether they have been vaccinated, although they must treat the responses as confidential medical information. But, until now, a question remained about whether employers could safely offer incentives to employees to obtain vaccinations, such as cash payments or additional paid time off. After commentators expressed concern that incentives of anything more than a nominal amount might run afoul of EEOC guidance on employer wellness benefits programs, some business groups pressed the EEOC for clarification.
In its most recent guidance, the EEOC says employers may offer incentives for employees to obtain a vaccination provided by a pharmacy, public health department or other health care provider in the community. Incentives commonly being used by employers include a cash reward or additional paid time off to ease the burden on employees who get the vaccine and perhaps miss work due to side effects.
The EEOC does leave open questions for employers offering incentives to employees for employer-administered vaccinations. When an employer or its agent administers the vaccine, employees are providing pre-vaccination medical information to the employer. Therefore, the EEOC considers it inappropriate to offer a “substantial” incentive, and any incentive must not be “so substantial as to be coercive.”. Unfortunately, the EEOC offers no guidance on what might be considered a substantial incentive. Employers who are administering vaccines themselves or having them administered through their agent, should consult legal counsel about any potential incentives being offered to employees.
The EEOC considers it improper for an employer to offer an incentive to an employee in return for the employee’s family member being vaccinated by the employer or its agent, because the employer would receive that family member’s medical information in violation of the Genetic Information Nondiscrimination Act (GINA).
The EEOC has made clear that the door is open for employers to incentivize employees to receive COVID-19 vaccines. At least where employees are being incentivized to receive the vaccine from independent sources, not the employer or its agent, the EEOC imposes no constraints on the nature or limits of the incentive. Only in the event that an employer incentivizes vaccination administered by that employer or its agent must the employer consider whether the level of the incentive is so substantial as to be “coercive.”