As more businesses prepare to return to the workplace, employers everywhere are evaluating whether to mandate COVID-19 vaccination as a condition of employment or simply encourage vaccination. For many employers, this decision hinges on the company’s ability to offer employees incentives to take the vaccine – including paid time off, cash, or gifts. However, offering incentives can implicate a variety of legal issues under state and federal statutes, including the potential for such incentives to violate wellness program rules.

With so much legal uncertainty surrounding vaccine incentives, many employers have been reluctant to offer incentives that might otherwise encourage vaccination and expedite the process of safely returning employees to work. In early February, over 40 organizations from a wide array of industries submitted a letter to the Equal Employment Opportunity Commission (“EEOC”), requesting that the EEOC quickly provide clarity “on the extent to which employers may offer their employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC.”

On April 15, 2021, the EEOC finally answered the call of these businesses, announcing that it “expects to update its technical assistance about COVID-19 to address these [vaccine incentive] issues, among others, and that work is ongoing.” The EEOC did not go so far as to provide a date by which this guidance would be issued, but businesses will be eagerly awaiting.

Polsinelli attorneys will continue to monitor and report on any updated guidance from the EEOC.