COVID-19 Vaccine Incentive Guidance for Employers

The EEOC (Equal Employment Opportunity Commission) has been issuing COVID-19 guidelines for employers dating back to March 2020. The guidance has been issued in a frequently asked question (FAQ) format and gets updated periodically. On May 28, 2021, the EEOC updated its guidance to include information for employers wanting to provide incentives to employees for receiving a COVID-19 vaccination.

We’ve rounded up a few vaccine incentive guidelines for employers to keep in mind.

Q: Can I require my employees to be vaccinated before entering a worksite?

A: There are no laws that prevent an employer from requiring all employees to be vaccinated for COVID-19; however, employers must allow for employees to not get vaccinated due to a disability or religious belief.

First, the EEOC indicates there are no federal equal employment opportunity laws that would prevent an employer from requiring all employees physically entering a worksite to be vaccinated for COVID-19; however, employers generally must provide reasonable accommodations for employees who do not get vaccinated due to a disability or religious belief. Reasonable accommodations may include having unvaccinated employees wear a mask, work at a social distance, work a modified shift, get tested periodically for COVID-19, work from home, or accept a job reassignment.

Q: Can I provide vaccine incentives to my employees?

A: Employers may provide an incentive to employees who voluntarily provide documentation that they received a COVID-19 vaccination.

The EEOC also indicates that employers may provide an incentive to employees who voluntarily provide documentation that they received a COVID-19 vaccination on their own from a third-party provider, and this will not be considered a violation of the Americans with Disabilities Act (ADA). Employers are required to keep vaccination information confidential and stored separately from an employee’s normal personnel file.

Q: To what extent can I provide incentives to my employees?

A: When an employer provides for an on-site COVID-19 vaccination where the vaccines are administered by the employer or someone the employer hires, incentives cannot be so substantial that they would be considered coercive.

The EEOC further adds that if or when an employer provides for an on-site COVID-19 vaccination where the vaccines are administered by the employer or someone the employer hires, incentives cannot be so substantial that they would be considered coercive. Employees generally must answer pre-vaccination medical questions, and a large incentive might make some employees feel pressured to disclose protected health information.

While the COVID-19 vaccination incentive guidance is helpful, employers may want to think carefully about any incentives they are considering. There are many Americans who are skeptical about the safety of the COVID-19 vaccines, and this could be a very sensitive topic for some employees. There’s also other Americans who are strong believers in the vaccines, and they are fearful of being around unvaccinated people. Employers have some difficult decisions to make, and it would not be surprising if there are a slew of lawsuits because of COVID-19 requirements (or a lack thereof) that are proclaimed by employees to be discriminatory, unsafe, unhealthy, or impermissible in the workplace.

For more details, the EEOC FAQ guidance can be found by clicking here. Section K of the FAQ guidance discusses vaccine incentives offered by employers.