Employers across the nation, concerned for the safety of their workers, customers and clients, are assessing the best way to get their employees fully vaccinated. Some are contemplating offering incentives to encourage employees to receive a COVID-19 vaccine as a way to avoid the potentially problematic alternative of requiring employees to be vaccinated. Although it has been determined by the Equal Employment Opportunity Commission (EEOC) that requiring all employees to be vaccinated is generally legal, whether it is legal to offer incentives as an alternative remained an open question until last week.
On May 28, 2021, the EEOC put out a new memorandum regarding vaccine incentives and it is broken down into two sections. The first part addresses incentives for employees who voluntarily provide proof that they were vaccinated on their own and the second part relates to incentives for employees who voluntarily received a vaccination administered by their employer or its selected agent.
Last month the EEOC addressed the legality of asking for proof of vaccination, stating that “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” Additionally, the request for vaccination documentation does not seek information protected by the Genetic Information Nondiscrimination Act (GINA). Thus, employers are free to offer incentives to employees who provide proof of vaccination.
The guidance for employees accepting the vaccine through the employer or an agent offers greater detail. It had previously been determined that, in the case of wellness programs, the financial size of an employer’s incentive can impact the “voluntariness” of the employee’s participation. The latest guidance suggests that large incentives could be interpreted as coercing participation or impermissibly penalizing employees who opt against participation, and would therefore be illegal.
With this in mind, employers should use caution before offering significant financial incentives to encourage workers to get vaccinated. At a minimum, employers can offer a financial incentive that compensates employees for their time or expense in receiving the vaccination and missed pay if the vaccine was received during work hours. The Society for Human Resource Management suggests that an additional financial incentive such as a gift card or small stipend is also permissible. Again, there is no guidance on a maximum incentive, but a stipend equivalent to less than one day’s wages should not place an employer at risk.
Of course, as with all wellness incentives, employers must provide the ability for employees who cannot take the vaccine to receive a reasonable alternative. For example, employees who are pregnant, or who have disability-related or religious restrictions may be entitled to accommodations allowing them to receive the incentive or an alternative incentive, even without receiving the vaccination.
As always, employers considering wellness program incentives should consult with counsel before implementation to minimize legal risks. It is likely that further guidance on the permissible level of incentives will come soon. For more information and to ask related questions, please contact Peter Bennett (pbennett@