EEOC Releases Guidance on Incentives for Employee Vaccination

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) released updated technical assistance explaining how federal equal employment opportunity (EEO) laws—namely, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA)—apply when an employer offers incentives for employees to provide documentation or other confirmation of their COVID-19 vaccination status.

First, the agency’s updated guidance explains that federal law does permit an employer to require all physically present employees to be vaccinated against COVID-19, provided the employer otherwise complies with the reasonable accommodation provisions of the ADA and Title VII, as well as other applicable laws. If you are an employee requiring a reasonable accommodation, you must let your employer know.

As to incentives, the EEOC explained that federal law permits an employer to offer incentives for their employees to voluntarily provide confirmation of their COVID-19 vaccination. Moreover, if an employer is administering vaccines itself, it can provide incentives for employees to get vaccinated as long as the incentives are not “so substantial as to be coercive.” As the EEOC further explains, “[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.” Employers may not offer incentives to an employee in return for an employee’s family member getting vaccinated, but may offer an employee’s family member an opportunity to be vaccinated through an employer’s program.

Unfortunately, the EEOC’s updated technical assistance does not list any examples of employer-provided incentives that may be considered substantial enough to be coercive. Additionally, the EEOC’s announcement cautions that apart from federal EEO laws, state and local laws may place additional restrictions on employers in their ability to offer incentives for employees to vaccinate.