The New Guidance:
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance relating to employers’ obligations and limitations in responding to the COVID-19 pandemic in the workplace. Most notably, the EEOC’s newly revised guidance gave the go-ahead to employers seeking to incentivize COVID-19 vaccinations in the workplace.
In doing so, the EEOC clarified that offering vaccination incentives to employees who receive a vaccination on their own will not violate federal anti-discrimination laws, including the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), so long as the employees receive the vaccinations voluntarily and the employers maintain confidentiality of any employee vaccination records provided by their employees in conformance with the ADA. As such, an employer’s request for documentation confirming that an employee received a COVID-19 vaccination is not a disability-related inquiry that would violate the ADA.
The EEOC’s guidance clarifies that employers may provide employees and their family members with information to educate them about COVID-19 vaccines in an effort to raise awareness about the benefits of vaccination and can even administer vaccines to their employees.
However, employers who choose to administer or use an agent to administer vaccines are prohibited from providing incentives that are so substantial that they are considered coercive. The EEOC’s reasoning behind this limitation is that offering a substantial incentive may pressure employees to disclose protected medical information, as is typically required when completing health screenings prior to receiving a vaccination and may potentially run afoul of the ADA. While the guidance does not include examples of coercive incentives, employers may avoid any potential ramifications relating to this limitation by not administering vaccinations personally or through an agent and instead accepting confirmation that an employee was vaccinated by an independent provider.
The guidance also clarifies that employers administering vaccines may only offer incentives to their employees who receive vaccinations and may not offer incentives in exchange for an employee’s family member receiving a vaccination. Because such incentives may potentially result in an employer receiving genetic information such as an employee’s family medical history, it may potentially run afoul of GINA and should be avoided. However, employers administering vaccines may still offer to vaccinate their employees’ family members so long as an incentive is not offered; the vaccinations are voluntary; all medical information provided is used solely for the pre-vaccination screening process, is kept confidential, and is not provided to any individuals who make employment decisions for the employees; and the employer receives prior written authorization from the family member before the family member provides any medical information.
Takeaway for Employers
Employers are permitted to implement COVID-19 vaccination incentive programs in the workplace. Employers may either provide incentives 1) in exchange for confirmation that an employee received a vaccination by a third-party provider; or 2) upon administering a vaccination, either personally or through an agent, so long as the incentive is not so substantial that it is considered coercive.
Employers who are concerned about the potential repercussions relating to the limitation on the second option should simply employ the first option, as requesting confirmation of a COVID-19 vaccination is permissible under the ADA.
While providing incentives to employees who receive COVID-19 vaccinations is a positive way to promote vaccination, educating employees about the benefits of vaccination goes hand-in-hand with any such incentive programs.
Employers also should keep in mind that other federal, state, and local laws may place more stringent restrictions on employers with regard to COVID-19 vaccination incentives.
If you have any questions regarding this Alert, please contact the authors, Jeff Mokotoff, partner in our Atlanta office at jmokotoff@fordharrison.com, and Melissa Castillo, associate in our Tampa office at mcastillo@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.