As offices start opening back up, employers want to know what they can do to encourage a safe work environment, including a vaccinated workforce. However, it’s imperative organizations stay legally compliant with laws such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Today, we will help clear up what the Equal Employment Opportunity Commission (EEOC) has outlined for what you can consider doing as an employer to offer employees incentives for the COVID-19 vaccine.
Although federal EEOC laws do not prevent employers from mandating vaccinations, some state restrictions apply (K.1.). Before determining what is best for your organization, it’s important to understand your state’s laws.
When mandating COVID-19 vaccinations for employees, employers may be required to provide reasonable accommodations for those who choose not to get vaccinated due to (1) disability, (2) pregnancy-related conditions, and (3) religious beliefs, practices, or observances.
Reasonable accommodations made for unvaccinated employees might include: wearing a face mask, social distancing, undergoing periodic COVID-19 testing, working a modified shift, conducting work from home, or accepting a reassignment (K.2.).
While mandating vaccinations is a possibility, many organizations plan to encourage a vaccinated workforce in various ways.
Employers can encourage vaccination by (K.3.):
When offering incentives, you want to make sure you aren’t breaking any laws in the process. To help, we’ve outlined circumstances the EEOC has identified to be appropriate for employers to offer incentives to get the COVID-19 vaccine.
When determining what you can do as an employer to incentivize your workforce to get vaccinated, there are two laws to understand and abide by: the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).
The ADA prevents discrimination against people with disabilities, meaning employers have to remain compliant when seeking medical information from an employee or job candidate. However, the EEOC has deemed the request of an employee’s vaccination documentation administered in the community to not be a disability-related inquiry. Additionally, the COVID-19 vaccination is in response to a global pandemic/ health crisis, which is another layer/ exception to any medical record concern some EE’s have.
The GINA, on the other hand, protects covered employees by preventing their genetic information from being used in the making of employment decisions. This act extends to requesting, requiring, purchasing, or disclosing genetic information of employees and or their family members. In regards to the COVID-19 vaccine, the pre-vaccination medical screening questions omit any questions regarding genetic information or family medical history. This allows requests to be made so long as employers maintain GINA compliance.
Knowing these two factors, let’s dive deeper into the circumstances for COVID-19 vaccine incentives.
If you want to know which of your employees are vaccinated, the EEOC identifies that employers may offer incentives when asking employees to voluntarily provide documentation of a vaccine administered in the community by a third-party provider (K.16.).
If an employee voluntarily receives a vaccination from a third-party provider in the community that is (1) not their employer or (2) an agent of their employer, employers do not have an incentive limitation when asking for voluntary documentation of vaccination. At this moment, the EEOC has not detailed examples of incentive limitations so it’s important you confer with your payroll/tax provider on gift taxation rules.
Note: Employers must maintain that all vaccine information is kept confidential.
Whether vaccination administration is offered by an employer, an employer’s agent, or a third-party vendor, employers can offer limited incentives (either rewards or penalties) to employees who voluntarily receive a vaccine (K.16.). They can offer incentives so long as the incentive is not coercive (K.17.) and as long as an employer does not acquire genetic information while administering the vaccines (K.19.).
As these incentives must be made available to everyone, if offered, unvaccinated employees can’t claim discrimination for not getting the incentive.
Under GINA compliance, it’s important to remember that employers cannot provide incentives for genetic information or family medical history. While employers may offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, they are not allowed to offer incentives to an employee for a family member’s receipt of vaccination (K.20.).
If an employer offers an employee’s family the opportunity to be vaccinated, they must maintain GINA compliance. Under GINA compliance, employers are not allowed to require an employee’s family member to be vaccinated; nor are they allowed to penalize employees if their family is not vaccinated. Should a family member voluntarily receive the COVID-19 vaccine from the employer, the employer must ensure that any medical information obtained must be (K.21.):
Now that we know when and how we can offer incentives, let’s look at what is deemed to be a non-coercive incentive. Non-coercive incentives can include (1) a cash bonus, (2) paid time off, (3) onsite clinics, (4) gifts, and (5) FFCRA leave (including time off for vaccinations, COVID treatment, or symptoms of suspected COVID).
Some organizations have already begun their incentive programs, including:
While this is a brief overview of COVID-19 vaccination incentives, it’s important to check your state’s laws to ensure your organization is remaining compliant.
To sum it up, the Equal Employment Opportunity Commission (EEOC) identified
For more information on COVID-19 vaccination incentives, visit the EEOC’s resource page on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult your own legal counsel for guidance on offering COVID-19 vaccination incentives to your employees.