EEOC Gives Green Light to Employers’ COVID Vaccine Incentives, With Important Caveats

The EEOC has updated its guidance on COVID-19-related compliance issues under the ADA, GINA, and other employment laws. In addition to modifying and expanding earlier guidance on employer vaccination programs, the updated guidance adds six Q&As addressing ADA and GINA considerations for employer-provided COVID-19 vaccination incentives for employees and their family members. Employers had requested clarification from the EEOC on the rules applicable to vaccination incentives in light of the withdrawal of proposed EEOC regulations earlier this year that would have limited incentives under many employer-sponsored wellness programs to de minimis amounts (see our Checkpoint article).

The updated guidance permits employers to offer COVID-19 vaccination incentives to employees and their family members, but the rules for these incentives differ depending on whether the employee or family member receives the vaccination independently in the community (e.g., at a pharmacy, public health department, or health care provider) or through an employer-administered program. The EEOC indicates that an employer does not make a disability-related inquiry for ADA purposes when requesting that employees voluntarily confirm that they received a COVID-19 vaccination in the community. Similarly, an employer does not request genetic information about employees or family members when requesting proof of community vaccination. According to the EEOC, neither the ADA nor GINA limits incentives in these situations.

Conversely, limits apply to incentives that are provided for vaccinations administered by the employer or its agent. Under the ADA, the incentive to the employee for an employer-administered vaccination cannot be “so substantial as to be coercive.” However, the guidance does not elaborate on the meanings of “substantial” or “coercive.” GINA does not limit incentives for an employee’s own employer-administered vaccination, so long as the pre-vaccination screening questions do not seek genetic information. However, the employer may not offer any incentives to employees in exchange for a family member’s vaccination because the family member’s answers to the screening questions would disclose medical information about the family member, which is considered genetic information (family medical history) of the employee. Under certain conditions, an employee’s family members may be offered employer-administered vaccinations, so long as the employee does not receive an incentive if family members receive vaccinations or suffer a penalty if they decline. The guidance emphasizes the importance of keeping vaccination information confidential.

EBIA Comment: While employers will welcome the clarifications and opportunities afforded by this guidance, they should not lose sight of some core limiting principles. For example, although the ADA does not limit employer incentives for vaccinations received in the community, employers should consider their obligations to employees who cannot receive a vaccination. Employers may need to provide reasonable accommodations so that employees whose disabilities or religious beliefs prevent them from being vaccinated can earn the same incentives as vaccinated employees. And, if the incentive is offered through or as part of a group health plan, then HIPAA’s nondiscrimination rules (including those for health-contingent wellness programs) may come into play. For more information, see EBIA’s HIPAA Portability, Privacy & Security manual at Section XI.I (“Wellness Programs Must Meet Specific Nondiscrimination Requirements”), EBIA’s Consumer-Driven Health Care manual at Section VI.H (“Wellness and Disease-Management Programs: ADA Considerations”), and EBIA’s Group Health Plans Mandates manual at Sections XX.F (“ADA Considerations for Wellness Programs”).

Contributing Editors: EBIA Staff.