The Equal Employment Opportunity Commission (EEOC) just recently confirmed what had been surmised all along: that employers can incentivize employees to get the COVID19 vaccine. However, as expected, there are some caveats and conditions that accompany this decision.
If You Merely Ask Employees for Proof of Vaccination by a Third-Party, Incentives to Vaccinate are OK.
According to the new EEOC guidance, an employer may incentivize employees to encourage the employee and their family members to get the COVID19 vaccine. The EEOC reasons that such incentives would not violate the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA) because information about whether the employee or their family member received the vaccine is not a disability-related inquiry or genetic information. Because asking for proof of vaccination does not qualify as the types of information that the ADA and GINA regulate, employers are free to incentivize employees to get the vaccine from third parties. These third parties might be the employee’s health care provider, a pharmacy, or the local public health department. The EEOC reminds employers to keep proof of vaccination information confidential in accordance with the ADA.
If You as the Employer Offer COVID19 Vaccine Clinics Directly to Employees, Incentives Get a Bit Trickier.
Some employers and wellness companies may consider offering COVID19 vaccination clinics at the worksite to reduce employee barriers in accessing the vaccine. To get more employees to sign up for the vaccine clinic, employers may offer employees and their family members incentives, such as money or prizes. Because there is no third party administering the vaccine, but rather the employer or employer’s agent (such as the wellness vendor), employers must take extra precautions when offering incentives.
If the employer wants to incentivize just employees to get the vaccine, the EEOC cautions that incentives should not be “coercive.” This is because direct administration of vaccines by the employer or a vendor hired by the employer requires the employer or vendor to ask pre-vaccination questions. The EEOC considers these pre-vaccination questions to qualify as disability-related screening questions, which implicates the ADA. Any incentive tied to employees answering disability-related questions must be part of a “voluntary” wellness program. Large incentives may undermine the voluntary nature of the vaccine clinic. As noted in previous blog posts:
The only guidance the EEOC has provided with regard to the meaning of “voluntary” (that hasn’t yet been overruled or withdrawn) is that the employer can neither require participation nor penalize employees who do not participate. Thus, whether and how an employer can incentivize the collection of employee health information is a subjective inquiry. Before incentivizing the collection of COVID19 vaccine information, or any other health information as part of your workplace wellness program, employers should determine employee attitudes about such information collection to minimize the risk of complaints or worse, lawsuits.
So, if the employer holds its own COVID19 vaccination clinic, make sure any incentives offered to employees do not feel coercive to the employees. The only way to really know if an incentive amount will feel coercive is to survey your employees. Outside of that, it’s guesswork.
What about Incentivizing Employees so that the Employee’s Family Members Get Vaccinated?
The EEOC says “no” to that situation. According to the EEOC, GINA prohibits employers from offering any incentives to employees in exchange for any family member’s health information, because such information would qualify as “genetic information.” Asking employee family members pre-screening questions for the COVID19 vaccine qualify as obtaining health information from those family members. Thus, the only way to involve an employee’s family members in a COVID19 vaccination clinic offered by an employer or a wellness vendor (on behalf of the employer) is to make the vaccine completely voluntary (i.e., incentive-free). If the employer does offer incentive-free vaccinations to employee family members, the employer must make sure to obtain that family member’s “prior, knowing, voluntary and written authorization” before asking any pre-screening questions for the vaccine.
If you are an employer or wellness vendor considering a COVID19 vaccination clinic, contact the Center for Health and Wellness Law, LLC for legal guidance to ensure your clinic achieves your goals with the lowest amount of risk.