Employers and businesses hoping to return to a widely Covid-vaccinated workforce have been diligently trying to turn this into reality by offering incentives to employees to either get vaccinated or prove that they already have done so. Some examples of existing incentives include gift cards, time off, and bonuses. However, some businesses have raised concerns that such incentives conflict with the Americans with Disabilities Act (“ADA”) by coercing participation in wellness activities.
After lawmakers and many employers across the country urged the US Equal Employment Opportunity Commission (EEOC) to issue guidance to companies considering offering such incentives, the EEOC did just that on May 28, 2021, by offering its take on the propriety of employer-sponsored vaccination incentive programs under the ADA and Genetic Information Nondiscrimination Act (“GINA”). In particular, the EEOC offered guidance on whether employers can offer incentive programs to their employees in exchange for the employee being vaccinated; and (2) whether proof of an employee’s vaccination status for qualification in employer-sponsored incentive programs conflict with federal anti-discrimination laws.
The EEOC said Friday that employers may offer incentives to encourage employees to obtain the Covid-19 vaccine and that they may also request documentation or proof of vaccination for employee qualification in employer-sponsored incentive programs. There is a caveat to this, of which employers should take note. The EEOC stated that under the ADA an employer may offer any incentive not “so substantial” as to be coercive to employees who voluntarily receive a vaccination administered by the employer or its agent. The EEOC further noted, “because vaccinations require individuals to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured into disclosing protected medical information.” [H]owever, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer. “Federal EEO laws do not prevent requesting documentation or other confirmation showing that an employee received a Covid-19 vaccination in the community because it 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 vaccination received in the community.”
The EEOC added that also under the GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that confirms the employee or their family members have been vaccinated. The EEOC confirmed that it is not an unlawful request under the GINA because the fact that someone has been vaccinated is not information about a disease, genetic information, or family medical history.
While the EEOC’s recent guidance provides some clarity, a gray area remains as to what exactly constitutes an incentive that is “so substantial” as to be considered coercive. The guidance arguably raises more questions than it answers. As such, the fundamental challenge for businesses right now is creating an incentive that will be both (a) considerable enough to motivate and encourage employees to become vaccinated, yet (b) modest enough to allow for the ultimate decision of the employee and willingness to complete the vaccine’s processes’ required screening questionnaire to remain fully voluntary and uncoerced. In light of this guidance that, while helpful, creates additional uncertainty, employers should take caution and consult counsel before offering their employees anything more substantial than a token incentive to become vaccinated or show proof of the same. As always, we will continue to monitor this evolving situation as more and more employers return to work.