On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued an update to its guidance which provides valuable information to employers who are either currently offering employee incentives related to vaccination or who are considering adopting such an incentive policy. For instance, employers may request documentation evidencing an employee’s vaccination status, and offer an incentive for doing so, without violating the ADA’s restriction on disability-related inquiries. However, employers collecting documentation related to employee’s vaccination status should ensure that any such information is kept confidential in accordance with ADA requirements.
Similarly, employers may offer incentives to employees to participate in vaccination programs administered by the employer or its agents. However, unlike employers offering an incentive for providing documentation of existing vaccination status, employers offering employees incentives to participate in a vaccination program must ensure the incentives offered are “not so substantial as to be coercive.” This restriction on the incentive offered reflects the fact that employees being vaccinated by their employer will need to answer screening questions prior to vaccination and may feel compelled to disclose disability related information.
Employers may offer incentives to employees for providing documentation evidencing the employee’s family member’s vaccination status without violating Title II of the Genetic Information Nondiscrimination Act (“GINA”). However, Title II of GINA precludes offering employees incentives to have family members participate in a vaccination program run by the employer or its agents. An employer may allow an employee’s family members to participate in a vaccination program run by the employer. However, no incentive may be tied to the participation of family members in such a vaccination program.
Employers considering vaccination programs or incentives for employees or their family members to get vaccinated face a complex and rapidly evolving set of legal and regulatory requirements.