EEOC Updates Guidance on Employer Vaccine Incentives

The EEOC has updated its previously issued guidance on COVID-19-related compliance issues under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and other federal employment nondiscrimination laws (see our Checkpoint article). The updated Q&As address workplace issues related to COVID-19 vaccinations, including employer-provided vaccination incentives for employees and their family members.

The revised language of the Q&As indicates that the ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination or provide confirmation of vaccination, so long as the health care provider administering the COVID-19 vaccine is not the employer or its agent. But if the vaccination is administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply, and the value of the incentive may not be so substantial as to be coercive. In addition, GINA does not limit the incentives an employer may offer to employees to encourage them or their family members to receive a COVID-19 vaccine or provide confirmation of vaccination, so long as the health care provider administering the vaccine is not the employer or its agent. Previous Q&As (which are unchanged) address other GINA considerations related to vaccination incentives.

EBIA Comment: This update does not substantively change the EEOC’s prior guidance on vaccination incentives under the ADA and GINA, but the wording more clearly states that neither of these laws limits incentives when the vaccine is administered by a provider other than the employer or its agent. When the employer or its agent administers the vaccine, the EEOC continues to assert that incentives subject to the ADA cannot be “so substantial as to be coercive” but, unfortunately, still does not shed any light on the meaning of those terms. In addition, to comply with GINA, an employer cannot offer any incentives to an employee in exchange for a family member’s receipt of a vaccination administered by the employer or its agent. Employers implementing incentives should continue to monitor agency guidance, including the recent tri-agency FAQs on the application of HIPAA wellness program rules to vaccine incentives (see our Checkpoint article). 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”) and XXII.E (“GINA and Wellness Programs”).

Contributing Editors: EBIA Staff.