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Legal Considerations of Employer-Provided Covid-19 Vaccine Incentives

Covid-19 has left employers who want their employees back in the office in a difficult position. With the pandemic still raging, many employees are fearful of returning to the office with unvaccinated peers. In order to ease their employees’ concerns and provide a safe work environment, some employers are offering incentives to get vaccinated. Some existing vaccine incentives include gift cards, time off after receiving the second dose, pay for the time spent getting the vaccine, or bonuses ranging from $75 to $500. Although offering vaccine incentives may seem like a solution at this time, employers should be mindful of the legal ramifications of providing their employees with incentives for receiving the vaccine.

The EEOC enforces the ADA and limits general wellness incentives. To date, the EEOC has released only limited guidance on vaccine incentives in particular, merely suggesting that employers keep incentives to de minimis gifts, such as “a water bottle or gift card of modest value,” but it has not explained the boundaries of what incentives are acceptable. Although many businesses have asked the EEOC to clarify the legality and boundaries of vaccine incentives, these remain largely unanswered questions.

As the law stands, employers may not discriminate against their employees. If they offer incentives to receive a vaccine that some of their employees cannot receive due to religious or health reasons, they are in danger of potentially violating discrimination laws because some of their employees cannot receive that benefit. Federal discrimination law also prohibits employers from making incentives so persuasive as to be coercive, but de minimis benefits will likely not cross that line.

Further, the ADA forbids employers from coercing employees into providing their disability-related information, which could be solicited by the screening questionnaires involved in receiving Covid-19 vaccines. Employers must be careful not to elicit details about their employees’ disabilities, especially when they are the ones offering the vaccine.

Many businesses have petitioned the EEOC to take a broad approach in defining what incentives will be legal, but without that guidance, employers must be careful not to trigger the ADA or discrimination laws by offering coercive or involuntary incentives to their employees. The safest way to do this is to keep any incentives small in value until the EEOC provides more clarification.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 103
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About this Author

Savannah R. Gibbs Employment Attorney Hunton AK Houston
Associate

Savannah represents corporate clients in substantial discrimination, trade secret misappropriation, and wage and hour litigation. She guides her clients through all aspects and stages of labor and employment matters, approaching her role as advocate with each client’s specific needs and long-term goals in mind.

Before joining the firm, Savannah served as a two-year judicial law clerk to the Honorable Lynn N. Hughes in the US District Court for the Southern District of Texas. Savannah uses her two years of experience viewing a broad band of cases...

713-220-3624
Amber Rogers Employment Lawyer Hunton Andrews Kurth
Partner

Amber’s national practice assists clients with traditional labor relations and litigation, employment advice and counseling, and complex employment litigation.

Amber is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and is a trial lawyer who has extensive experience representing and advising clients in traditional labor relations, such as collective bargaining, representation elections, decertification elections, unfair labor practice charges, arbitrating grievances, contract administration and...

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