UPDATE (5/28/21): EEOC Authorizes Employee Incentives for COVID-19 Vaccination

The Equal Employment Opportunity Commission just released new guidance to employers today.  The new guidance deals directly with the question of whether employers can offer incentives to employees in connection with COVID-19 vaccines.  More specifically, the EEOC is exploring the circumstances under which an employer can provide extra benefits or payments to employees who agree to be vaccinated against COVID-19.

Conclusion:

The conclusion that the EEOC reached is that under the provisions of both the ADA and GINA, employers can offer incentives to employees who agree to be vaccinated, as well as those who agree to provide documentation of their vaccination status.  The agency indicates that the incentive cannot be so large as to be coercive, but it can be an incentive nonetheless.  The agency does not provide any guidance with respect to what would be an unduly large/coercive incentive program.

Rewards or Penalties:

Interestingly, the EEOC indicates that incentives can be rewards or penalties—implying that employers could penalize employees who refuse to be vaccinated.  However, the agency also expressly notes that employers cannot penalize employees whose families refuse to be vaccinated against COVID-19.

COVID-19 Guidance:

This guidance continues in the pathway of previous agency guidance on COVID-19, with the EEOC clearly recognizing the scope and seriousness of the impact of COVID-19 infections in the workplace.  Based on that impact, the EEOC has granted employers significant leeway in evaluating and screening employee health, supporting COVID vaccination programs and related measures.  As with any occupational health consideration, programs must be implemented in a uniform way that does not unfairly single out or target any individual employee or any protected classification group of employees.

For more information on COVID-19 vaccination programs or how to improve your company’s resilience in the face of airborne infectious diseases, contact our team today for a free consultation.