April 28, 2021

EEOC to Publish Guidance on COVID-19 Vaccine Incentives

Can you offer your employees an incentive to get the COVID-19 vaccine? If so, what are the limits?

The answer to the first question has historically been yes. The answer to the second has been all over the map since at least 2016. The EEOC and courts have disagreed, with answers ranging from 30% of the total cost of health care coverage to a de minimis incentive, such as a water bottle.  And, yes, politics have played a part with answers changing under different Administrations.

Most recently, on January 20th the current administration withdrew the EEOC’s latest answer (de minimis, such as a water bottle), which had just been published on January 7th. So, employers are once again unsure if and how much of an incentive they may offer.

What’s this issue?  These incentives may run afoul of the American with Disabilities Act (ADA), Genetic Information Non-Discrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). For example, an individual with a disability may not be able to participate in a workplace wellness program. That employee would not be eligible for the incentive, which might constitute discrimination in violation of the ADA.

On April 15th, the EEOC wrote that it intends to issue guidance to “clarify[…] the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act [ADA] and other laws enforced by the EEOC. The agency expects to update its technical assistance about COVID-19 to address these issues, among others, and that work is ongoing.”

Wait, there’s more! On April 28th, the EEOC held a virtual public hearing on “Workplace Civil Rights Implications of the COVID-19 Pandemic.” Among the 12 panelists were Michael Eastman, Senior Vice President, Policy and Assistant General Counsel, Center for Workplace Compliance (and formerly with the U.S. Chamber of Commerce) and Johnny C. Taylor, President and CEO of the Society for Human Resource Management (SHRM).

Some of Mr. Eastman’s testimony included requests for the EEOC to issue guidance for employers to clarify:
• How employers should assess vaccine requirements imposed by clients or customers;
• The extent to which they may use vaccine incentives and how to structure them to minimize risk;
• When in-person work is an essential function of a job; and

Some of Mr. Taylor’s testimony included requests for the EEOC to issue guidance for employers to clarify:
• whether employers may prioritize return to work based on vaccination status;
• if employers may segregate workers, such as having unvaccinated employees work in separate areas or in teams; and
• what are the guardrails on vaccine incentives?

So, while we wait, talk to your company’s legal counsel about what incentive, if any, you want to offer your employees to get vaccinated.