Earlier this year Dave Zieg, MD and I shared our perspectives on whether employers should incentivize employees to receive the COVID-19 vaccine. Last week the EEOC made the decision a little easier – but not much. The good news is that we now have guidance from the EEOC indicating that providing a reward to incent an employee to get vaccinated is permitted. The bad news is that the guidance still leaves plenty of uncertainty.
The EEOC had two slightly different answers depending on whether the employer is involved with vaccine administration. If the employer is merely asking for proof of vaccination from a public health agency, local pharmacy or health care provider, there is no specified limit on the incentive so long as the proof of vaccination is provided voluntarily. This should provide a reasonable level of comfort for employers who were somewhat reluctant to offer cash or gift card incentives because of the legal uncertainty. We would expect more employers to offer incentives in an effort to boost vaccination rates, and our recent conversations with employers reflect this.
However, if the employer is involved with vaccination, or contracts with a third party to provide the vaccine to employees, the incentive must not be so substantial as to be “coercive.” Unfortunately, there is no given standard for what would be considered coercive. This may be a deterrent for employers that have arranged for onsite vaccination to provide an incentive, given that whether an incentive feels coercive to an employee is certainly going to vary individual by individual.
Regardless of employer involvement with vaccine administration, it is critical that any vaccination information collected as part of an incentive program be kept confidential pursuant to the ADA. If an employer is collecting proof of vaccination, that is medical information and the ADA requires that the information be stored separately from regular personnel files. Employers should certainly have protocols in place to keep vaccine status information private.
As we recommended in January, whatever you decide about incentivizing vaccinations, continue to share information transparently with employees and set appropriate expectations about returning to the workplace.
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