The Carrot, Not the Stick: May Employers Legally Offer Employees Incentives To Get Vaccinated?
Last month, the Department of Health and Human Services – Centers for Disease Control and Prevention ("CDC") updated its COVID-19 guidance for fully vaccinated individuals.
The updated guidance provided that fully vaccinated individuals could resume all indoor or outdoor activities without masks or social distancing unless required by federal, state, or local laws. For many, including employers, the CDC's recent guidance provided a glimmer of light that this global pandemic is nearing its end. However, COVID-19 still presents many risks and challenges that employers must bear in mind as they look to transition their operations to pre-pandemic formats. One such challenge for employers is implementing lawful and effective strategies to motivate hesitant workers to receive a COVID-19 vaccination.
Background and Mandatory Vaccinations
At last count, more than 51 percent of all Americans have received at least one dose of a COVID-19 vaccine, and 43 percent of all Americans have been fully vaccinated. While vaccination numbers continue to increase, the current data indicates many individuals are still resistant to be vaccinated. Nearly half of all Americans have yet to receive any dose of a COVID-19 vaccine, even though such vaccines are now widely available. Accordingly, for many employers, the push to get their entire workforce vaccinated continues.
Employers may be reticent to require their employees to be vaccinated, even though that is permissible in most instances, so long as religious or disability issues are not in play. Specifically, employees unable to receive the vaccine because of a disability or sincerely held religious belief, practice, or observance may not be discriminated against by their employer for refusing to be vaccinated. Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA") require an employer to provide reasonable accommodations for such employees unless providing an accommodation would create an undue hardship for the company and its operations (which can be difficult to illustrate). Employers also should keep a weather eye on whether any vaccine requirement creates a disparate impact on (or disproportionately excludes) employees in one or more Title VII protected categories. However, secular beliefs and beliefs about the medical efficacy of the vaccine itself will not be enough to exclude any employer vaccination requirement.
Incentive Programs and Limitations
These thorny issues, including employers' hesitation to force employees to be vaccinated, have led many employers to offer instead incentives, such as paid time off, gift cards, or other benefits to employees who voluntarily choose to be vaccinated. Until recently, however, the EEOC, the agency tasked and empowered with the regulation of federal nondiscrimination laws, such as the ADA, the Genetic Information Nondiscrimination Act ("GINA"), the Rehabilitation Act, and Title VII, had not provided official guidance on the permissibility of employer-provided COVID-19 vaccination incentives.
That all changed on May 28, 2021, when the EEOC updated its COVID-19 guidance, providing that employers CAN offer incentives to employees choosing to be vaccinated in most cases (see Section K and its subparts K.16 through K.21).
There are limitations. For example, the EEOC prohibits any incentive from being "so substantial as to be coercive." The EEOC provides:
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.
This limitation on substantially coercive incentives does not apply to employers who do not administer the vaccine to their employees or allow an agent of the employer to administer the vaccine. Employers, however, must protect the employees' vaccination information pursuant to confidentiality requirements under the ADA.
The EEOC also clarifies that while employers may (in many circumstances) provide incentives to their employees to promote vaccination, GINA prohibits employers from offering incentives to an employee in return for an employee's family member getting vaccinated by the employer or its agent. This type of incentive program by employers is prohibited under the health and services provision of GINA's Title II. The EEOC explains that such an incentive program "would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member…lead[ing] to the employer's receipt of genetic information in the form of family medical history of the employee. (emphasis in original). The limitation, however, does not extend to an employer that offers incentives to employees to provide confirmation that their family members received a vaccine from their own health care provider. The EEOC states that this type of situation "is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member . . . , nor is it any other form of genetic information." Furthermore, there are no prohibitions under GINA that restrict employers from offering vaccinations to a family member of an employee without an incentive attached to the offer.
While employers are permitted to require employees to receive a COVID-19 vaccine and offer incentives to motivate employees to obtain the same so long as the limitations described above are observed, the best rule of thumb is to speak with your employment attorney before taking such action to ensure that your anticipated approach is allowed.