As we return to a “new normal” and what is hoped to be the tail end of the COVID-19 pandemic, the EEOC recently issued helpful guidance (starting at Section K16, specifically) regarding employer incentives for COVID-19 voluntary vaccinations under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). Links to our prior blog articles discussing the EEOC’s COVID-19 vaccination guidance can be found here and here.
Ultimately, the EEOC’s new guidance, together with employer compliance strategies related to OSHA’s recently released COVID-19 Emergency Temporary Standard (summarized here), can be used by employers to shape their ongoing COVID-19 vaccination strategies.
The highlights of the EEOC’s vaccine incentive guidance are summarized below. Employers, however, should bear in mind that state laws could be more restrictive when it comes to vaccine incentives and vaccine-related employer mandates. As a result, employers will want to carefully navigate both federal and state regulations.
COVID-19 VACCINES & THE ADA
May employers offer an incentive to employees to voluntarily provide documentation or other confirmation that they have received a vaccination on their own from a pharmacy or other health care provider in the community?
Yes. According to the EEOC, merely requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination is not a disability-related inquiry covered by the ADA. Therefore, incentivizing employees to provide vaccination confirmation information is permissible.
May employers offer incentives to employees for voluntarily receiving a vaccination administered by the employer or its agent?
Yes, so long as the incentive, which includes both rewards and penalties, is not so substantial as to be coercive. The EEOC does not provide guidance as to what rises to the level of a “coercive” incentive, so employers may want to consult with legal counsel on that issue. Regardless, the reason the EEOC is concerned about potential coercion associated with employees receiving the vaccine is because vaccinations require employees to answer disability-related pre-screening questions and “a very large incentive could make employees feel pressured to disclose protected medical information.”
The EEOC also explains that the “incentive limitation” does not apply if employers are simply incentivizing employees to provide documentation or other confirmation that they have received a vaccination on their own from a pharmacy or other health care provider in the community.
COVID-19 VACCINES & GINA
May employers offer incentives to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider (e.g., doctor, pharmacy, health agency, etc.)?
Yes. Under GINA, employers may offer incentives to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf (e.g., pharmacy or health department) that the employees or their family members have been vaccinated. The EEOC explains that GINA doesn’t apply in this instance because a request for proof of vaccine status is not the same as a request for family medical history information.
May employers offer incentives to employees in exchange for the employees getting vaccinated by the employer or its agent?
Yes, so long as employers don’t acquire genetic information while administering the vaccines. The EEOC further clarifies that the pre-vaccination medical screening questions associated with the three COVID-19 vaccines now being used (Moderna, Pfizer and Johnson & Johnson) do not inquire about genetic information.
May employers offer incentives to employees in exchange for an employee’s family member getting vaccinated by the employer or its agent?
No. Providing an incentive to employees in return for their family members getting vaccinated would violate GINA. This, according to the EEOC, is because the vaccinator would be required to “ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member.” And that information, by extension, “would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.” Therefore, offering an incentive from employer to employee in order to “receive” that kind of medical history information is prohibited under GINA.
May employers offer employees’ family members an opportunity to be vaccinated without offering the employee an incentive?
Yes. GINA permits employers to offer vaccinations to employees’ family members if certain steps are taken to comply with GINA.
Toward that end, the EEOC explains that employers cannot require employees to have their family members get vaccinated and cannot penalize employees if their family members decide against getting vaccinated. Additionally, employers are required to ensure that all medical information obtained from family members during the screening process i) is only used for the purpose of providing the vaccination; ii) is kept confidential; and iii) is not provided to any managers, supervisors or others who make employment decisions for the employees. And finally, the EEOC states that 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.
If you have any questions on issues discussed in or related to this post, please contact:
- Dana Stutzman at (317) 977-1425 or dstutzman@wp.hallrender.com;
- Claire Bailey at (317) 429-3608 or cbailey@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
