Over the past several months, there has been significant discussion on specific topics related to employer ability to mandate employees obtain a vaccine and/or to offer certain incentives to encourage employees to do so. Unfortunately, employers have not received any form of definitive guidance on how to implement such a plan or program, as well as what limitations would apply to any incentive provided. In January 2021, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking, which addressed the topic of incentives as part of any voluntary program implemented by an employer. In doing so, the EEOC identified water bottles and nominal gift cards as items that would likely be considered appropriately of de minimis value so as not to conflict with any applicable anti-discrimination rules pertaining to employer voluntary wellness plans. However, that rule was never implemented. As such, short of an employer simply mandating its workforce receive vaccination, most employers have been left to their own devices to determine the best and most practical way to encourage employees to obtain a vaccine for the protection of the health and safety of the workplace. Since the vaccine became more widely available (now available to all adults and children 12 and over) most employers have chosen to take the path of least resistance and strongly encourage employees to get the vaccine from an independent third party provider and possibly provide incentives of de minimis value to stay consistent with the EEOC’s previous announcement. In other cases, employers have thrown caution to the wind and offered more lucrative incentives to get their workforce vaccinated. During this period, employers have been urging the EEOC to provide some form of definitive guidance on the topic of vaccines and vaccine incentives that allows employers to make informed decisions appropriate for both their business and employees. Despite employer requests, the EEOC told employers that it would provide the guidance, but did not provide this necessary assistance until today.
The EEOC announced this morning that it has issued updated guidance addressing various issues which fall within the areas of federal law over which it has jurisdiction (i.e., Title VII, ADA and GINA). The guidance provides substantive guidance on specific topics related to vaccines, employer mandated and voluntary programs, and use of incentives. However, it falls well short of providing the definitive direction employers have been seeking for the past several months on the permitted amount of any financial incentive that can be provided to employees for voluntarily receiving the vaccine. Some highlights include:
- Allows employers to require vaccines for all employees to enter the workplace subject to providing accommodations in compliance with Title VII and ADA
- Addresses how to handle employees who cannot receive vaccines in compliance with employer mandated and/or voluntary vaccine programs
- Provides examples of reasonable accommodations for those who cannot be vaccinated due to disability or religious objections
- Informs employers that they can offer voluntary vaccination to certain groups of employees so long as the criteria utilized is non-discriminatory
- Allows employers to offer incentives to employees for voluntarily providing documentation or confirmation that they have received a vaccination from a third party since requesting such documentation is not a prohibited disability-related inquiry
- Allows employers to offer incentives to employees for voluntarily receiving the vaccine if such incentive “is not so substantial as to be coercive.” Based on the updated guidance, the EEOC believes that a large incentive could make employees “feel pressured to disclose protected medical information.” However, the incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation of vaccination from a third party not the employer or an agent of the employer
- Fails to provide specifics on the type or amount of any incentive that can be offered to employees for voluntarily receiving a vaccine without conflicting with the ADA, GINA or other applicable law.
If you have implemented a vaccination program or policy, we would recommend review of the updated guidance to ensure that your policy is consistent with the EEOC’s position on the topic.
If you have implemented a vaccination program or policy, we would recommend review of the updated guidance to ensure that your policy is consistent with the EEOC’s position on the topic. The attorneys in the Labor & Employment Group of Bose McKinney & Evans are available to answer your questions and provide guidance regarding the impacts of these changes.
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