Seyfarth Synopsis: The EEOC has released anticipated guidance (found here) related to the COVID-19 pandemic and what employers can and cannot do (“Updated Guidance”). The Updated Guidance provides guidance on 4 main topics: (1) employer mandated vaccination policies; (2) reasonable accommodations; (3) employee vaccination and confidentiality; and (4) vaccine incentives. This legal update focuses on permissible incentives provided by employers which encourage employees to be vaccinated. For a discussion of the other topics, see our Employment Law Lookout found here.
We previously noted that the EEOC’s existing guidance under the Americans with Disabilities Act (ADA) makes it unclear whether and what level of an incentive an employer may offer to encourage employees to get the COVID-19 vaccine. Offering an incentive in exchange for a vaccination could create a wellness program that contains disability-related inquiries. Although the Updated Guidance does not answer what level of incentive would be permissible, it provides helpful guidance for employers who want to establish an incentive program.
Incentives Permitted Under the ADA
Although the ADA prohibits employers from making disability-related inquiries to employees, there is an exception for inquiries made in connection with a voluntary employee health program (such as a wellness program offering vaccines). It is currently unclear what level of incentive would cause a program to be involuntary. (Regulations proposed in January 2021 permitting only de minimis incentives -- such as water bottles -- have been withdrawn by the current administration).
Where a vaccine is administered by a third party (e.g. pharmacy, personal health care provider or clinic), the Updated Guidance clarifies that requesting documentation or confirmation that an employee received a COVID vaccination is not a disability-related inquiry covered by the ADA. Therefore, an employer may offer any size incentive to an employee to provide confirmation of vaccination administered outside of the work environment.
If the vaccine is administered by the employer or its agent (e.g. a provider hired by the employer), however, employees would have to answer disability-related screening questions from the employer or the agent prior to receiving the vaccine. Therefore, the ADA would apply and restrict the incentives that could be offered. A “very large incentive” could make employees feel pressured to disclose protected medical information and the program may not be voluntary.
Incentives Permitted Under GINA
The Genetic Information Nondiscrimination Act (GINA) restricts employers from requesting genetic information from employees, including information about the manifestation of disease or disorder in a family member (i.e. family medical history). The Updated Guidance explains when employer provided incentives for COVID vaccinations could violate GINA.
The Updated Guidance provides that GINA is not violated when an employer offers an incentive to employees to provide proof of vaccination from a third party, because the fact that the employee received a vaccination is not genetic information. GINA is also not violated when an employer offers an incentive to employees if the vaccine is administered by the employer or its agent, because the vaccines currently available (Pfizer, Moderna and Johnson and Johnson) do not require pre-vaccination screening questions that inquire about genetic information. (See above for a discussion regarding the ADA.)
The Updated Guidance provides that GINA would allow an employer to offer an incentive to employees to provide documentation or other confirmation from a third party that their family members have been vaccinated.
GINA would be violated, however, if an employer offers an incentive to employees in return for a family member getting vaccinated by the employer or its agent, because this would require asking the family member medical questions. Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.
Notably, an employer can offer vaccinations to an employee’s family members without offering an incentive, as long as the employer takes steps to comply with GINA. This means that the employer must; (1) ensure that all medical information obtained during the screening process is used only for providing the vaccination; (2) the information is kept confidential; and (3) the information is not provided to any managers, supervisors, or others who make employment decisions for the employees. In addition, employers need to obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions.