On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) revised its online publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, clarifying and building on its prior vaccination guidance (see our prior reporting on that guidance here). Although the EEOC didn’t specifically answer the question we previously raised, whether a vaccine incentive is subject to limits that apply to wellness incentives under the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA), they’re giving the green light for vaccine incentives in certain situations. The most notable changes for employers are described below.
Information on an employee’s vaccination status for COVID-19 (coronavirus) is a confidential medical record under the ADA, so it must be stored in a secure location, separate from personnel files. However, asking an employee whether they’ve been vaccinated isn’t a disability-related inquiry, so you don’t have to follow the ADA rules that require such inquiries to be job-related and consistent with business necessity.
You can require all employees to be vaccinated, but you must provide reasonable accommodations for those with disabilities and sincerely held religious beliefs. You may also have an obligation to consider accommodations for employees who refuse to be vaccinated because of pregnancy; they must receive the same benefits as other employees who are similar in their ability or inability to work. Even if a mandatory vaccination policy applies to everyone, you must also consider whether the policy has an unfair impact on certain employee groups based on their national origin, race, age, etc. For example, some groups may have a disproportionately difficult time obtaining the vaccine due to challenges with English proficiency, transportation, or internet access.
You can encourage employees to get vaccinated by providing educational resources, such as posters or flyers from the Centers for Disease Control (CDC) or your local health department, or by helping employees locate vaccination clinics and transportation to those clinics.
You can offer an incentive, without violating the ADA or the Genetic Information Nondiscrimination Act (GINA), to employees who voluntarily provide documentation or other confirmation that they or their family members were vaccinated in the community, i.e., not at an employer-sponsored event. There is no limit on the size of this incentive.
If you or your agent provide vaccinations (e.g., if you host a vaccination clinic), you may offer an incentive for employees to get a vaccination—either a reward or penalty—without violating the ADA so long as “it is not so substantial as to be coercive.” The EEOC is concerned that too large of an incentive could force unwilling employees to divulge protected medical information during the pre-screening process. The EEOC doesn’t have the same concern about providing an incentive to employees under GINA, because the pre-screening for the three current vaccines doesn’t elicit genetic information. However, under GINA you can’t offer an incentive for family members to get vaccinated by you or your agent. Providing this incentive would result in you finding out genetic information (in the form of family medical history) gleaned in the pre-vaccination medical screening. Simply providing the opportunity for employees’ family members to be vaccinated is fine, though.
If you offer voluntary vaccinations to certain groups of employees, you need to consider whether it could have a disparate impact on one or more protected classes.
If a fully vaccinated individual asks for an accommodation, you still need to run through the interactive process required under federal law and any relevant state laws.
Tips: You can encourage (and even mandate) vaccines, but you will have differing levels of legal exposure. The incentive with the least ADA and GINA baggage is giving extra time off, money, or gifts to employees who bring in proof of their or their family members’ vaccinations received in the community. Providing money or gifts may require you to jump through extra hoops to comply with income tax rules, so extra time off is generally the simplest incentive to administer. If you provide vaccines directly and want to incentivize, you need to more carefully consider ADA and GINA implications. If you have questions, review the EEOC’s guidance or call your Vigilant Law Group employment attorney.