EEOC Issues Guidance on Employer Incentives for COVID-19 Vaccinations

co-author Brandon Maxey

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19, the Americans with Disabilities Act (ADA) and other EEO laws1. This is the first update issued by the EEOC dealing with vaccinations since December 16, 2020. In its last update, the EEOC issued guidance about mandatory vaccinations in the workplace. This most recent update answers the call from over 40 employer groups requesting guidance on employer-provided incentives for COVID-19 vaccinations2. Below are key takeaways from the EEOC’s May 28, 2021 update.

Mandatory Vaccinations

The EEOC reaffirmed that federal EEO laws do not prevent an employer from requiring its employees to be vaccinated, subject to the reasonable accommodation provisions of Title VII and the ADA. Both laws require employers to provide reasonable accommodations to employees who, because of a disability or a sincerely held religious belief, cannot get vaccinated, unless of course providing an accommodation would pose an undue hardship on the employer’s business.

The EEOC cautions that such policies may have a disparate impact on demographic groups that have greater barriers to receiving the vaccine than others. The EEOC also warns employers of the risk in applying a vaccination requirement in a way that treats employees differently based on their disability, race, color, religion, sex, national origin or age.

The updated guidance provides some examples of reasonable accommodations employers may provide to employees who do not get vaccinated due to disability, sincerely held religious beliefs, or pregnancy. These include requiring the unvaccinated employee to wear a face mask, social distance from others, work a modified shift, get periodic COVID-19 tests, work remotely or even accept reassignment.  

Employer Incentives for Voluntary Vaccinations

Employers may offer an incentive to employees who voluntarily provide documentation that they received their vaccination. The EEOC specifically states that requesting such confirmation is not a disability-related inquiry covered by the ADA. The ADA requires that the employer keep vaccination information confidential.

Employers may also offer an incentive to employees for voluntarily receiving vaccinations administered by the employer or its agent; however, the incentive may “not be so substantial as to be coercive.” This incentive limitation only applies to employer-provided vaccines and not to incentives offered to employees who voluntarily provide documentation of vaccination. The distinction is significant as a large incentive could make employees feel pressured to disclose protected medical information because vaccinations require answering disability-related screening questions.

Practical Application

The importance of the EEOC’s unprecedented guidance cannot be understated. Since the EEOC touched on the topic of employer-mandated vaccinations in December 2020, many HR and legal professionals were left scratching their heads wondering whether engaging in such conduct was a violation of the Health Insurance Portability and Accountability Act (HIPAA) or other EEO laws. The short answer is no. The EEOC is taking bold action (that we may likely never see again) because of the ramifications that this global pandemic has had on the workplace and economy.

Practically speaking, vaccination incentives help employers understand the extent of which its workforce is vaccinated. This can minimize risk and assists employers in making decisions about reopening, in-person events and issuing reasonable accommodations.

The labor and employment attorneys at Mayer LLP regularly work with employers in implementing the EEOC’s COVID-19 related updates and are assisting HR and in-house counsel with safely returning employees back to the workplace.