Proposed EEOC Rules May Affect Employer-Backed COVID-19 Vaccine Incentives

Early last month, the Equal Employment Opportunity Commission (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 proposed rules allows employers to offer employees only “de minimis” incentives for participating in wellness programs. This language might leave employers wondering, what exactly is a “de minimis” incentive?

“De minimis” defined

“De minimis” (adjective) 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. As an example, in a $1 million deal, a $10 mistake is “de minimis.”

Wellness programs

In the past, some employers have offered incentives to encourage employees to participate in wellness programs, such as routine annual medical exams. Incentives may have included annual gym memberships or airline tickets, as examples.

Under the recently-proposed EEOC rules, employee incentives may be no more than “de minimis in value.” Examples cited by the EEOC include a water bottle or small gift card.

COVID-19 vaccinations

In December, the EEOC recommended that business owners encourage their employees to take the COVID-19 vaccine versus mandating the shot. The EEOC warned that employers who mandate the vaccine may violate the employee’s rights under the ADA or GINA when asking necessary prescreening health and family history questions.

In order to encourage employees to get the vaccine, some employers have offered incentives. As examples, Trader Joe’s and Dollar General have offered paid time off as motivation to take the vaccine. An employer may wonder if a paid day off is considered “de minimis” under the EEOC’s proposed rules?

Since the EEOC’s proposed regulations are not final, employers may not have to worry about the “de minimis” incentive rules just yet. In the meantime, 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

Categories: Covid 19, Uncategorized