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EEOC Issues New FAQs on COVID-19 Vaccine Incentives EEOC Issues New FAQs on COVID-19 Vaccine Incentives

EEOC Issues New FAQs on COVID-19 Vaccine Incentives

Late last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance addressing two important, yet previously uncertain, areas:
 
  1. Whether employers can offer bonuses or other incentives to encourage their employees to get the COVID-19 vaccine.
  2. Whether employers can require the COVID-19 vaccine for all employees physically entering the workplace.
In short, the EEOC says yes to both of these questions under the laws it enforces.
 
Vaccine Incentives

Many employers have offered incentives of some type to encourage employee vaccinations. The new guidance from the EEOC explicitly confirms the ability to offer such incentives. Armed with this new information, employers should now feel confident to enact and implement vaccine incentive plans.[1] As you might imagine, however, the EEOC’s green light on employer vaccine incentive plans is not the entire story.

Employers should proceed cautiously and deliberately and must continue to:
 
  1. Keep vaccination information confidential pursuant to the Americans with Disabilities Act (“ADA”).

    “Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community. As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.”
  1. Ensure that any offered incentive (including rewards and penalties) related to a vaccination administered by an employer or an agent of the employer is not so substantial as to be coercive.

    The EEOC advised that: “[b]ecause vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.” The language prohibiting incentives from being “so substantial as to be coercive” applies only to vaccinations administered by an employer or an employer’s agent. The limitation specifically does not apply if the employer offers an incentive to employees who voluntarily provide documentation/confirmation of a vaccination received from a third-party provider.
  1. Refrain from offering incentives to an employee in return for the employee’s family member getting vaccinated by the employer or the employer’s agent.

    Under the Genetic Information Nondiscrimination Act (“GINA”), employers may offer incentives to employees who provide documentation/confirmation from a third-party that the employee or employee’s family members have been vaccinated. Requests for documentation/confirmation of COVID-19 vaccination status are not unlawful requests under GINA. However, employers should not request any additional documentation to ensure the inquiry does not run afoul of the ADA.

    Employers may also offer incentives to employees (as noted above, subject to the limitation on not providing incentives that are “so substantial as to be coercive”) in exchange for the employee receiving the vaccine from the employer or the employer’s agent as long as genetic information is not acquired.

    Additionally, employers may offer the opportunity for an employee’s family member(s) to receive the vaccine, provided that the employer complies with GINA. To comply, an employer must not require family member vaccinations; must not penalize employees for family members’ refusal to receive vaccinations; must ensure that all medical information collected is only used for the purpose of providing the vaccinations, is kept confidential, and is not provided to the employer’s decisions makers; and must obtain prior, knowing, voluntary, written authorization from the family member before the family member is asked any questions about medical conditions. Employers may not offer incentives to employees in exchange for their family members being vaccinated by the employer or the employer’s agent.
Provided that employers follow the directives listed above, offering bonuses or other incentives for the purpose of encouraging employees to get the COVID-19 vaccine is an acceptable practice, according to the EEOC.
 
Mandatory Vaccine Policies
 
The EEOC additionally updated its guidance advising that federal Equal Employment Opportunity (“EEO”) laws do not prevent employers from requiring that employees who physically enter the workplace are vaccinated for COVID-19. If an employer elects to put in place a mandatory COVID-19 vaccine policy, it should ensure that its mandatory vaccine program complies with the reasonable accommodation provisions of the ADA (for individuals with disabilities) and Title VII of the Civil Rights Act of 1964 (for religious accommodations) and does not discriminate against any individual or group of individuals based on a protected characteristic. Employers also need to be aware of other laws that may place additional restrictions on employers, including state laws.  See our prior article noting some potential issues.
 
In its guidance, the EEOC noted that some individuals or members of certain demographic groups may face more significant barriers to receiving the COVID-19 vaccine than others, and that as a result, some employees or employee groups may be more significantly impacted by a workplace vaccination requirement. Employers should watch for those negative impacts on groups of employees, particularly if employees in a protected classification are impacted.
 
Employers should approach mandatory vaccination policies with this EEOC guidance in mind, ensuring also that any restrictions imposed by state and local law are considered as well. Employers must also consider the practical impacts of a mandatory vaccine policy on their workforce, as a significant percentage of individuals remain resistant to receiving a vaccine, particularly when the vaccines have not received full approval from the FDA.

For more information, contact Tami Earnhart, Cameron Ritsema, Sloan Holladay-Crawford or the Labor, Employment and Immigration attorney with whom you most frequently work.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
 
[1] For the purposes of this update, all reference to “vaccines” or “vaccine” refers to COVID-19 vaccine[s].
 
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