June 02, 2021

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical guidance to assist plan sponsors with compliance with the Americans with Disabilities Act (ADA), the Rehabilitation Act, Genetic Information Nondiscrimination Act (GINA) and other Equal Employment Opportunity (EEO) laws during the COVID-19 pandemic. The guidance made major national news (WSJ, USA Today, Politico, and others). The guidance’s most notable updates include a new section that defines voluntary permissible COVID-19 vaccine incentives.

Key COVID-19 Vaccine Incentives Guidance

Largely, employers may incentivize vaccines under either one or both designs listed below. Under Design #2, per EEOC’s guidance, employers would need to carefully consider the incentive amount - as a substantial incentive would be deemed “coercive.” The guidance did not specify the dollar amount nor threshold beyond which the incentive would meet the definition of coercive.

Voluntary Vaccine Incentives
Incentive Design	ADA	GINA
Design #1: Incentivize employees and family members to prove that they have received the COVID-19 vaccine by submitting documentation or other confirmation.	Permissible Explanation: COVID-19 vaccination status documentation from a provider is not a disability-related inquiry covered by the ADA.*	Permissible Explanation: COVID-19 vaccination status is not information about the manifestation of a disease or disorder in an employee or family member (known as family medical history under GINA), nor is it any other form of genetic information.
Design #2: Incentivize employees to voluntarily receive a COVID-19 vaccination administered by the employer or its agent (e.g., on-site clinic services provider)	Permissible Explanation: As long as any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.** Vaccinations often require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.	Permissible for employees Not permissible for family members*** Explanation: As long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated.

*The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.

**The EEOC does not elaborate or provide additional information on what it considers “substantial” or “very large” in terms of the vaccine incentive amount. According to the guidance, it appears that this restriction only applies to COVID-19 vaccination administered by the employer or its agent.

***Employers can still offer the COVID-19 vaccine to family members as long as they do not incentivize participation.

COVID-19 Vaccine Mandate Before Worksite Entry

The EEOC guidance provides further clarification to employers that may be considering mandating vaccination for employees who are physically present on the worksite.

Federal EEO laws do not prevent an employer from requiring all employees to be fully vaccinated against COVID-19 before physically entering the workplace, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.

• In some circumstances, Title VII and the ADA requires an employer to provide reasonable accommodations for employees whom, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Pregnant employees who are not vaccinated may also be entitled (under Title VII) to work adjustments if the employer makes modifications or exceptions for other employees.
• Reasonable accommodations include: an unvaccinated employee masking, working at a social distance from coworkers or non-employees, working a modified shift, periodic testing for COVID-19, teleworking, or finally, accepting a reassignment.

What Should Large Employers Be Doing?

In light of the new guidance and clarity regarding permissible vaccine incentives, employers can consider the following steps:

• Read the guidance in its totality and discuss with legal advisors.
• Consider which modifications, if any, your company may need to make to its existing or planned COVID-19 vaccine incentives program based on EEOC guidance.
• Consider how your COVID-19 vaccination incentives strategy aligns with your overall health and well-being objectives.
• Discuss the planned incentive strategy with employee resource groups (ERGs) or focus groups before rollout.

What's Next?

The Business Group will continue to monitor for future developments and keep our members updated on any new regulations and guidance.

Resources

• What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
• Quick Survey Findings: Large Employers' COVID-19 Vaccine Strategy Update
• The Case for COVID-19 Vaccination Incentives in the U.S.

If you have questions, comments, or concerns about these or other regulatory and compliance issues, please contact us.

We provide this material for informational purposes only; it is not a substitute for legal advice.

More Topics

Articles & Guides COVID-19