Federal Government Gives Employers Green Light To “Incentivize” Workers To Get Vaccinated

The Equal Employment Opportunity Commission has just quietly given American companies the green light to to do whatever it takes to “incentivize” American workers to accept the coronavirus vaccine.

As vaccinations continue to slow, and states beef up incentives including lotteries and cash prizes to any adults who agree to get vaccinated who haven’t already, the EEOC has just issued some long-awaited guidance on how far companies can go in pushing workers to be vaccinated. Some companies, including Delta Air Lines, have said they won’t hire anyone who hasn’t already been vaccinated.

Earlier today, EEOC posted updated and expanded technical assistance related to the COVID-19 pandemic, including answers to FAQs concerning vaccinations in the employment context. https://t.co/wUWNs6bG3L

— Sara Clark (@saracravenclark) May 28, 2021

The updated guidelines say employers may offer incentives for employees to provide documentation showing they have been vaccinated since requesting this proof “is not a disability-related inquiry” or an “unlawful request” under federal anti-discrimination laws. What’s more, companies who choose to offer the vaccine on-site, or who incentivize employees to get vaccinated elsewhere, can’t offer perks or punishments substantial enough to be “coercive”.

The questions, which were by far the most important pieces of the new guidance, were tucked away at the bottom of the update, making the changes an easy thing for reporters to miss before a long holiday weekend.

K.16. Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community? (5/28/21)

Yes. Requesting 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. As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.

K.17. Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent? (5/28/21)

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

Employers including Dollar General, Aldi and Instacart have already moved to reward their employees for receiving the Covid-19 vaccine by offering paid time off and cash stipends. And in April, President Joe Biden called on every employer to offer paid time off for workers to recover from potential vaccine side effects.

Will this be the last of the federal government’s pre-MDW Friday news dump? We shall see…

Not to be shown up by the EEOC’s Friday News dump, OSHA will surely release its long-awaited emergency temporary standard on COVID-19 the weekend before the Fourth of July.

— Meg Spicer, Esq. (@Spicer_Meg) May 28, 2021

But it’s extremely likely that some critics of the new rules might emerge after the three day weekend.