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• Can an Employer Incentivize COVID-19 Vaccines? Yes. Here’s How. – read now

Can an Employer Incentivize COVID-19 Vaccines? Yes. Here’s How.

On May 28, 2021, the federal Equal Employment Opportunity Commission (EEOC) supplemented its COVID-vaccine guidance and addressed employer incentives for voluntary COVID-19 vaccinations.

In prior guidance, the EEOC stated that an employer may impose a COVID-19 vaccine mandate (as long as it provides reasonable accommodation for religion and disability). Nonetheless, many employers have opted to incentivize employees to voluntarily receive vaccines, rather than require them. The EEOC’s position on vaccine incentive programs has been unclear until now.

Incentives for Third Party v. Employer Vaccination of Employee

The EEOC’s updated guidance distinguishes between incentives to provide proof of vaccines administered by the employer and those administered by a third-party provider such as a pharmacy, public health department, or other health care provider. There are no limits to incentivizing employees to voluntarily provide documentation that they have been vaccinated by the third-party provider. However, there are limitations on employer incentives to voluntarily provide documentation of vaccination by the employer or its agent. In this case, the incentive must not be “so substantial as to be coercive.” According to the EEOC, if the incentive is coercive or “very large,” then the employees are essentially being coerced into disclosing protected medical information to the employer (or its agent) through the pre-vaccination screening questions.

Incentives for Third Party v. Employer Vaccination of Employee’s Family Member

Employers may also offer incentives to employees to provide confirmation from a third party, such as a pharmacy or health department, that the employees’ family members have been vaccinated. Conversely, the Genetic Information Nondiscrimination Act (GINA) precludes employers from offering incentives to an employee to provide confirmation that an employee’s family member was vaccinated by the employer or its agent. According to the EEOC, pre-vaccination medical screening would include medical questions about the family member, which would then lead to the employer’s receipt of the employee’s genetic information.

Employer Vaccination of Employee’s Family Member with No Incentive

If the employer wants to offer vaccinations to an employee’s family members on a voluntary basis, without offering the employee an incentive, it may do so. In this case, the employer must take certain steps to comply with GINA.  According to the EEOC, the employer must, “ensure that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.  In addition, employers need to ensure that they obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions. If these requirements are met, GINA permits the collection of genetic information.”

As a general disclaimer, the employer should be aware that all vaccination information collected by the employer is confidential and should only be shared with other employees on a need to know basis. If you have questions about your company’s vaccine policy or incentive program, contact our Labor & Employment Law Group.

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