The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance on employer incentives related to encouraging employees (and their family members) to get vaccinated against COVID-19. In a Q&A format, the guidance addresses compliance issues under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and other federal employment nondiscrimination laws.
The revised language of the Q&As indicates that the ADA doesn’t limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination or provide proof of vaccination. However, this holds true only if the health care provider administering the COVID-19 vaccine isn’t the employer or its agent.
If the vaccination is administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply. Thus, the value of the incentive may not be so substantial as to be coercive.
In addition, GINA doesn’t limit the incentives an employer may offer to employees to encourage them or their family members to receive a COVID-19 vaccine or provide proof of vaccination. This also holds true only if the health care provider administering the vaccine isn’t the employer or its agent. Previous Q&As, which remain unchanged, address other GINA considerations related to vaccination incentives.
Cannot be coercive
This update doesn’t substantively change the EEOC’s previous guidance on vaccination incentives under the ADA and GINA. However, the wording more clearly states that neither of these laws limit incentives when the vaccine is administered by a provider other than the employer or its agent.
In situations where 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.” Unfortunately, the agency still hasn’t shed any light on the exact meaning of these 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.
Verify your policies
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. These can be found on the Centers for Medicare and Medicaid Services website.
Although the latest EEOC guidance provides some further clarity, you may want to also consult an attorney regarding your organization’s policies regarding proof of vaccination or incentives. Visit the EEOC website for the full text of the EEOC’s Q&As on COVID-19 and EEO laws.
We highly recommend you confer with your Miller Kaplan advisor to understand your specific situation and how this may impact you.