On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance explaining when employers can offer incentives to employees to (1) voluntarily receive a COVID-19 vaccine administered by an employer; or (2) provide COVID-19 vaccination documentation without violating the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The guidance answers questions related to who employers can offer incentives to and how they can do it. The key takeaway from the EEOC’s new guidance is that employers can offer incentives to their employees to voluntarily provide COVID-19 vaccination documentation or receive an employer administered COVID-19 vaccine- with some limitations.

Below is a summary of the questions and answers provided by the EEOC:

  • Can employers offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by an employer or its agent under the ADA and GINA?
    • Yes, employers can offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by them or their agents. Since the current pre-vaccination medical screening questions do not ask about genetic information, GINA is not implicated.
    • But, there is a catch under the ADA – the incentive, including any reward for getting vaccinated or any penalty for not getting vaccinated, cannot be so substantial as to be coercive so the employee does not feel pressured to disclose protected medical information under the ADA.
  • Can employers offer incentives to employees for voluntarily documenting that they received a COVID-19 vaccination from a third party under the ADA?
    • Yes, employers can offer incentives to employees for documenting receipt of a COVID-19 vaccination from a third party under the ADA because asking about vaccination status is not a disability-related inquiry under the ADA.
    • Unlike employer-administered vaccinations, there is no limitation on the incentives employers can offer to employees to confirm that they received a COVID-19 vaccination.
  • Can employers offer incentives to employees for voluntarily providing documentation that they or their family members received a COVID-19 vaccination from a third party under GINA?
    • Yes. Under GINA, this is allowed because the fact that someone received a vaccination is not an unlawful request for genetic information.
  • Can employers offer incentives to employees for their family members to receive a COVID-19 vaccination administered by an employer or its agent?
    • No. Under GINA, employers cannot offer incentives to employees in exchange for their family members receiving a COVID-19 vaccination administered by an employer or its agent. The EEOC guidance explains that doing so would lead to employers receiving family history information of the employee by asking the medical screening questions of their family members. However, employers can offer employees’ family members the opportunity to get vaccinated through the employers’ vaccination administration without offering incentives. Under GINA, when doing so, employers need to make sure that they obtain prior, knowing, voluntary, and written authorization from the family members before asking them about their medical conditions. Any medical information received from the family member must be kept confidential and not be used for any other purpose other than providing the vaccination.

If employers offer incentives to their employees under the EEOC’s new guidance, the COVID-19 vaccination information they receive as a result is still confidential. So, even if employees voluntary disclose the COVID-19 vaccination status of themselves or their family members, employers must keep this information private, confidential, and separate from the employees’ personnel files.

For more information, contact Nicole at 301-657-0744 or nmbehrman@lerchearly.com.