In late May 2021, the EEOC promulgated guidance on employer incentives for employees and their families who receive the COVID-19 vaccine. Under the guidance, employer incentives offered to employees who either receive a COVID-19 vaccination from the employer or provide documentation that they received a vaccination through a pharmacy or health care provider are permissible under both GINA and the ADA.
The EEOC further advised that employers may offer incentives to employees to provide documentation that their family members received a COVID-19 vaccine from a health care provider. The employer cannot offer incentives to employees in exchange for the employees' family members receiving the vaccine from the employer or its agent under GINA. However, the employer may offer employees' family members vaccines without an incentive.
GINA and the ADA require any incentive that an employer offers to employees be voluntary. Incentives, therefore, cannot be so significant that employees feel coerced into getting the vaccine. Due to the nature of vaccine screening questions, a significant incentive could make employees feel pressured to disclose protected medical and/or genetic information.
The EEOC's guidance does not provide a bright line rule to determine when an incentive becomes significant enough to be coercive. As a parallel, it may be helpful to look at incentives for employer wellness programs to determine when an incentive becomes coercive. Such incentives have included reductions in the employee's share of health care premiums or co-pays and direct payments of cash or cash equivalents (e.g., gift cards). Under the EEOC's proposed wellness program rules issued in January 2021, employers were limited to providing only de minimis incentives (e.g., a water bottle or gift card of modest value) for participation in wellness programs. The Biden administration withdrew those proposed rules, however, and may reevaluate and issue new proposed rules. Employers should monitor the new rules for additional insight on what would be considered a permissible incentive to receive a COVID-19 vaccine.
Although there remains some uncertainty, the EEOC guidance is clear that employers may incentivize employees to get the COVID-19 vaccine. De minimis incentives would likely not be deemed coercive. Employers who are considering providing an incentive to employees to receive a COVID-19 vaccine are encouraged to discuss the proposed incentives with a member of their BCLP team.
We would like to thank St. Louis summer associate Scott Franc for his assistance in preparing this article
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