EEOC Provides Updated Guidance on COVID-19 Vaccine Incentives

On May 28, 2021, the United States Equal Employment Opportunity Commission (EEOC) issued updated Q&A guidance on employer-provided incentives for COVID-19 vaccinations. This update is intended to guide employers to ensure that their voluntary vaccination incentive programs are compliant with both the Americans With Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA.)

The guidance confirms that an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community. It states that requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA, nor is it an unlawful request for genetic information under GINA. 

An employer may also offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent without violating either the ADA or GINA, provided that both of the following conditions are met.

1. The incentive reward (or penalty) is not so substantial as to be coercive. However, the EEOC offered no examples or guidance to quantify what a coercive penalty would be.
2. The employer does not acquire genetic information while administering the vaccines. The guidance notes that the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information. Employers offering vaccines to employees should limit pre-screening questions to those found in the CDC Pre-Vaccination Screening Form to ensure that they do not violate GINA.

The guidance also discusses incentives in the context of providing vaccinations to employees’ family members. It states that under GINA an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. The guidance explains, “providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee, which is prohibited under GINA.

However, employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent (minus any incentive), if they take certain steps to ensure GINA compliance. Those steps include all of the following.

1. The employer does not require employees to have their family members get vaccinated.
2. The employer must not penalize employees if their family members decide not to get vaccinated.
3. The employer must ensure that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions.
4. The employer must 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.

Finally, the guidance notes that an employer is required to keep vaccination information confidential pursuant to the ADA.

Employers considering a workplace-based vaccination incentive program should familiarize themselves with the EEOC guidance and ensure they have confidentiality measures in place.