EEOC Issues Guidance on Employer Incentives to Employees for Voluntary COVID-19 Vaccinations

Nicole BehrmanNicole Behrman

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance explaining when employers can offer incentives to employees to (1) voluntarily receive a COVID-19 vaccine administered by an employer; or (2) provide COVID-19 vaccination documentation without violating the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The guidance answers questions related to who employers can offer incentives to and how they can do it. The key takeaway from the EEOC’s new guidance is that employers can offer incentives to their employees to voluntarily provide COVID-19 vaccination documentation or receive an employer administered COVID-19 vaccine- with some limitations.

Below is a summary of the questions and answers provided by the EEOC:

  • Can employers offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by an employer or its agent under the ADA and GINA?
    • Yes, employers can offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by them or their agents. Since the current pre-vaccination medical screening questions do not ask about genetic information, GINA is not implicated.
    • But, there is a catch under the ADA – the incentive, including any reward for getting vaccinated or any penalty for not getting vaccinated, cannot be so substantial as to be coercive so the employee does not feel pressured to disclose protected medical information under the ADA.
  • Can employers offer incentives to employees for voluntarily documenting that they received a COVID-19 vaccination from a third party under the ADA?
    • Yes, employers can offer incentives to employees for documenting receipt of a COVID-19 vaccination from a third party under the ADA because asking about vaccination status is not a disability-related inquiry under the ADA.
    • Unlike employer-administered vaccinations, there is no limitation on the incentives employers can offer to employees to confirm that they received a COVID-19 vaccination.
  • Can employers offer incentives to employees for voluntarily providing documentation that they or their family members received a COVID-19 vaccination from a third party under GINA?
    • Yes. Under GINA, this is allowed because the fact that someone received a vaccination is not an unlawful request for genetic information.
  • Can employers offer incentives to employees for their family members to receive a COVID-19 vaccination administered by an employer or its agent?
    • No. Under GINA, employers cannot offer incentives to employees in exchange for their family members receiving a COVID-19 vaccination administered by an employer or its agent. The EEOC guidance explains that doing so would lead to employers receiving family history information of the employee by asking the medical screening questions of their family members. However, employers can offer employees’ family members the opportunity to get vaccinated through the employers’ vaccination administration without offering incentives. Under GINA, when doing so, employers need to make sure that they obtain prior, knowing, voluntary, and written authorization from the family members before asking them about their medical conditions. Any medical information received from the family member must be kept confidential and not be used for any other purpose other than providing the vaccination.

If employers offer incentives to their employees under the EEOC’s new guidance, the COVID-19 vaccination information they receive as a result is still confidential. So, even if employees voluntary disclose the COVID-19 vaccination status of themselves or their family members, employers must keep this information private, confidential, and separate from the employees’ personnel files.

For more information, contact Nicole at 301-657-0744 or nmbehrman@lerchearly.com.

Vaccines Eliminate Need To Quarantine For Period Of Time According To CDC

Michael NearyMichael Neary

The big news of the week for employers did not come out of the Department of Labor or Equal Employment Opportunity Commission. Instead, it came out of the Centers for Disease Control and Prevention (“CDC”). After much discussion and speculation in the public health community, CDC announced that asymptomatic fully vaccinated individuals need not quarantine after a subsequent COVID-19 exposure within three months of full vaccination. The CDC guidance is available here.

We all hope the time after full vaccination where an individual need not quarantine following a COVID-19 exposure will extend further if the protection from the vaccine is shown to last longer than three months.

The ramifications of this decision for employers cannot be overstated. Had CDC come down the other way, there was literally no end in sight to the social distancing measures employers have been diligently following in the workplace since the pandemic started. Part of the reason employers follow social distancing is to minimize spread. But another big reason for social distancing within workplaces is to avoid quarantining large segments of employees if one of them contracts COVID. That is because most people within six feet of a confirmed COVID positive individual for 15 minutes or more are subject to a government-mandated quarantine. CDC’s new guidance means that a vaccinated employee can continue to work even if there is a close contact exposure. Given the CDC guidance, the risk of having to quarantine large groups of employees for an exposure will fall as more of the workforce is vaccinated.

Employers should update their own quarantine policies to align with CDC’s updated guidance. And employers should institute robust programs educating employees about the COVID-19 vaccine and encouraging employees to get the vaccine when it is available to increase the number of employees vaccinated. Doing so not only protects your workforce, it also, given the new CDC guidance, minimizes the disruption a confirmed COVID positive case will have on your day-to-day operations.

For more information, contact Michael at 301-657-0740 or mjneary@lerchearly.com.