On May 28, 2021, the Equal Employment Opportunity Commission released new guidance under the Americans with Disabilities Act and other discrimination laws on the incentives employers can offer employees for COVID vaccinations. The new guidance is helpful, but employers need to read it carefully to avoid potential violations.
Specifically, the EEOC distinguishes between providing employees incentives to get vaccinated and providing incentives to provide employers information that they have been vaccinated. The guidance also doesn’t address a key question regarding incentives.
The new EEOC guidance says “Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer).”
However, under the ADA, incentives to receive a vaccination administered by the employer or an agent of the employer are limited. Specifically, the incentive cannot be “so substantial as to be coercive.” Unfortunately, the new guidance doesn’t provide any examples of what the EEOC would consider “substantial.”
Moreover, guidance doesn’t provide any information on the size of the incentive an employer can offer to employees to get vaccinated by a health provider of the employee’s choice.
Practical impact for employers:
- If you are offering incentives for onsite vaccinations or have contracted with a third party to provide the vaccinations to your employers the incentive amount is limited to some unknown amount.
- If you are offering incentives for employees to provide information that they have been vaccinated, the incentive amount is unlimited.
- Employers should adjust their incentive policies and practices accordingly to ensure they are in compliance.
Additional information:
- Employers may also provide incentives to employees to provide documentation that their family members have also been vaccinated by their doctor, pharmacy, or health agency, or other health care provider. But employers cannot offer incentives to employees for their family members to be vaccinated by the employer or an agent of the employer.
- Information about an employee’s COVID vaccination is confidential medical information under the ADA.
Finally, the new EEOC guidance states: “As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
