Published on: June 4, 2021
Authors: D. Mark Wilson
The guidance distinguishes between providing employees incentives to get vaccinated and incentives for employees to confirm that they have been vaccinated.
The new EEOC guidance says “Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer).”
However, under the ADA, incentives to receive a vaccination administered by the employer or an agent of the employer are limited. Specifically, the incentive cannot be “so substantial as to be coercive.” Unfortunately, the new guidance does not provide any examples of what the EEOC would consider “substantial.”
Moreover, the guidance does not provide any information on the size of the incentive an employer can offer to employees to get vaccinated by a health provider of the employee’s choice.
Practical impact for employers:
- If you are offering incentives for onsite vaccinations or have contracted with a third party to provide vaccinations to your employees, the incentive amount may not be “substantial.”
- If you are offering incentives for employees to provide information that they have been vaccinated, the incentive amount is unlimited.
Employers may also offer incentives to employees to provide documentation that their family members have been vaccinated, but not for their family members to actually be vaccinated by the employer or an agent of the employer.
Employers must always be aware that information about an employee’s COVID vaccination is confidential medical information under the ADA.
Employers may still have to respond to disparate impact allegations that their incentives may create. The new guidance states: “As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”