As you know, COVID-19 vaccines have become more available and employees are slowly starting to return to the office. As a result, employment-based programs mandating, or incentivizing, employee vaccinations will become more of the norm. This post will discuss how an employer might create a voluntary workplace vaccination using rewards to encourage employee participation, and how to avoid possible issues.
According to Equal Employment Opportunity Commission (“EEOC”) guidance, the COVID-19 vaccination is currently not a covered medical examination with the Americans with Disabilities Act (“ADA”).
Accordingly, to ensure that vaccination requirements do not run afoul of federal civil rights laws, including the ADA, the Genetic Information Nondiscrimination Act (“GINA”), and the religious protections of Title VII of the Civil Rights Act of 1964 (“Title VII”), employers should carefully approach creating a vaccination policy.
Formulating a Vaccination Program
Questions about an employee’s ability to receive a COVID-19 vaccine and proof of vaccination are loaded with legal concerns. Specifically, pre-screening vaccination questions may lead to the disclosure of “disability-related” information under the ADA. Therefore, any pre-screening questions must be “job-related and consistent with business necessity.” To meet this standard, employers must have a reasonable belief, based on objective evidence, that an employee who fails to answer the questions, and therefore fails to receive a vaccine, will pose a direct threat to the health and safety of themselves or others.
At this point, the EEOC has offered limited guidance on this topic: either create a voluntary vaccination program (which we are discussing here) or refer employees to a third party that is unaffiliated with the employer so that those pharmacies or other health care providers may administer the vaccine.
Permissibility and Limitations of Voluntary Vaccination Incentives
Under the ADA, employers may institute vaccination requirements, but the usual standards for engaging in the interactive process and implementing reasonable accommodations still applies. However, there is no federal law that prohibits employers from encouraging or facilitating vaccinations for their employees under a voluntary program.
In voluntarily programs, clearly, employees may choose whether or not they wish to be vaccinated. In this case, employers must make sure that pre-vaccination disability-related screening assessments are also voluntary. If an employee chooses not to answer a question, the employer has the right to decline the vaccination, but the employer may not retaliate against, intimidate, or threaten the employee for refusing to answer any screening questions.
An important question to answer is: Can employers affirmatively incentivize employees to become vaccinated? If so, how do employers design incentives that ensure their vaccinations are 100% voluntary and does not force participation in potential violation of the anti-discrimination laws? Currently, the EEOC has not answered these questions. Prominent business associations have requested that the EEOC “quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without violating laws within the ADA and other laws enforced by it”. Until the EEOC responds, this will remain an unsolved, hot button issue with businesses and corporations attempting to use the vaccination and incentivize their employees. Many businesses and corporations want to use this strategy in order for their employees to return to work.
However, we are offered some guidance by the fact that the EEOC has addressed a similar issue involving incentives in the context of voluntary wellness programs. Two proposed rules released by the agency sought to limit the value of incentives employers could use to encourage employee participation in voluntary wellness programs. They set forth the permissibility of only de minimis incentives such has “water bottles” and “small dollar gift cards”. However, with the recent change in presidential administration, this EEOC guidance and proposals have been subject to regulatory freeze issued by the Biden Administration. At this point, it is not clear whether the EEOC will reissue similar rules regarding wellness program incentives in light of the Biden Administration.
It is also important to note that the EEOC has not stated that voluntary COVID-19 vaccination programs are similar to “wellness programs” where a similar rule might apply. They have also not addressed whether incentive ceilings might exist for voluntary vaccination programs.
Given the lack of guidance in this area, employers considering vaccination programs and associated incentives should tread carefully, remaining mindful of anti-discrimination protections and compliance with the ACA. Further, employers choosing to provide incentives to employees should do so in a neutrally applicable way that does not favor one protected group over another. Because of the sensitive issues involved, the design of any vaccination program should involve legal counsel in addition to human resources and operations teams, and should focus on the employer’s particular needs depending on its operations.
So, at this point, in the absence of EEOC restrictions or guidance, we recommend that employers interested in providing incentives as part of a voluntary vaccination program should contemplate and design programs that strike the right balance – incentivizing voluntary participation without creating a “haves” and “have nots” system that essentially compels participation.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://