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EEOC Allows Employers to Implement Vaccination Incentive Programs Today

May 28, 2021

The EEOC has issued guidance advising employers that they can institute vaccination incentive programs.

The EEOC states that “[r]equesting 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.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.” The same principle applies to employer administered vaccinations. The EEOC states that though a pre-vaccination questionnaire will solicit disability-related screening questions, a reward or penalty-based incentive program will not violate the ADA, provided the inventive is not so significant as to be coercive. The EEOC also clarified that incentivized employer administered vaccinations do not violate GINA as applied to employees. The current COVID-19 vaccination questionnaire does not collect family medical history constituting genetic information, only that of the employee.

When it comes to incentivizing an employee to demonstrate family vaccination, things get a bit trickier. The EEOC says that employers can incentive an employee to provide documentation that their family members have been vaccinated by a third party. Third party vaccination records, such as from a pharmacy, do not constitute family medical history under GINA because vaccination status is not itself family medical history, and therefore GINA’s restrictions on employer collection of genetic information do not apply. However, employers cannot incentivize an employer-administered vaccination of family members, as the pre-vaccination questionnaire will collect family medical history of the employee, and GINA prohibits incentivized collection of genetic information. However, an employer may offer vaccinations to an employee’s family members without an incentive, provided the employer obtains informed consent prior to administering the vaccine questionnaire, the information collected is used only for administering the vaccine, and the information is not provided to individuals capable of making employment decisions for the employee.

In short, employers can incentivize:

  • An employee receiving vaccination from a third party or through the employer; or
  • An employee’s family member receiving vaccination through a third party.

Employers can offer without incentives:

  • An employee’s family member receiving vaccination from the employer.

Employers Cannot Incentivize:

  • Employer administered vaccination of employee family members.

Regardless of incentive-based vaccination programs, employers can require vaccination for employees who physically enter the workplace, with some limitations. Under Title VII and the ADA, employers are required to provide reasonable accommodations for individuals with sincerely held religious beliefs and disabilities.

When it comes to disabilities, employers must generally offer a reasonable accommodation to employees who, because of medical limitation, cannot receive a COVID-19 vaccine. The EEOC notes that reasonable accommodations for this scenario might include requiring the employee to continue wearing a face mask or shield, improving ventilation, permitting remote work, or assigning the employee to less populous area of the worksite. The EEOC recommends that before implementing a vaccination requirement, employers should train managers on how to recognize a request for an accommodation and have plans in place to implement one.

When confronted with objections to vaccination based upon a sincerely held religious belief employers, like with the ADA, must offer a reasonable accommodation. The EEOC reminds employers that a sincerely held religious belief is broad in scope, and does not just cover ‘mainstream’ religious beliefs.

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