Can Business Owners Offer Incentives for Employees Who Take The COVID-19 Vaccine?

Recently, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to answer employer questions about whether or not business owners may lawfully offer incentives for employees who take the COVID-19 vaccine and other issues.

Earlier this year, the EEOC put forward proposed rules designed to clarify the breadth of incentives business owners may offer employees though employer-sponsored wellness programs without violating the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).

One of the rules would allow employers to offer employees only “de minimis” incentives. “De minimis” is Latin for “of minimum importance,” and refers to something that is so minuscule or small that the law does not refer to it and will not consider it. The agency’s guidance left many business owners wondering about the permissibility of their vaccine incentive program, prompting the EEOC to update its recommendations.

“Very large incentive”

The recently released guidance states that employers who administer vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. According to the EEOC, “Because 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.” Unfortunately, the EEOC does not offer indication regarding what “very large” means in this context.

The EEOC provided further guidance related to other vaccine questions:

• EEOC laws do not prevent or limit employers from offering incentives to employees to provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to ADA act.
• EEOC laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEOC considerations. Other laws, not in the EEOC’s jurisdiction, may place additional restrictions on employers.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

Help is available

Business owners with questions regarding COVID-19 vaccine incentive programs may call an O’Reilly Rancilio attorney at 586-726-1000 or visit our website at www.orlaw.com.