COVID-19: EEOC issues long-awaited guidelines for employers to offer employees incentives to get COVID-19 vaccine | K&L Gates LLP

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On May 28, 2021, the US Equal Employment Opportunity Commission (EEOC) updated its technical assistance questions and answers entitled: “What you need to know about COVID-19 and ADA, the Rehabilitation Act and other EEO laws“(Tips).1 The Guide says employers can offer incentives (in some cases, substantial incentives) to employees who voluntarily demonstrate that they have received a COVID-19 vaccination.

Employers were waiting in limbo to see if such incentives were allowed. In fact, in February 2021, the U.S. Chamber of Commerce and other professional associations urged the EEOC to provide clarification on the extent to which employers can offer their employees immunization incentives. So this direction should be good news.

EEOC reaffirms mandatory vaccinations are allowed, subject to “reasonable accommodation” and “direct threats”

Before discussing the incentives, the EEOC made it clear what was implied in its previous guidelines: that employers can generally require all employees entering the workplace to be vaccinated against COVID-19, except in two situations.

First, employers must make “reasonable accommodation” for employees with disabilities or with sincere religious beliefs, unless it creates “undue hardship on the employer’s business”. The EEOC explained that reasonable accommodations for unvaccinated employees could include: wearing a face mask, social distancing, working a modified shift, getting periodic tests for COVID-19, teleworking or accepting a reassignment. The guide also reminded employers that (1) it is illegal under the United States Disability Act (ADA) for an employer to disclose that an employee is receiving reasonable accommodation or to retaliate against an employee. employed for requesting accommodation; and (2) even vaccinated employees may request reasonable accommodations, for example, immunocompromised individuals may need accommodations because their conditions may prevent the vaccine from offering the full measure of protection.

Second, an employer can require all employees to meet a safety standard requiring vaccination against COVID-19, unless an employee cannot meet that standard and does not pose a “direct threat” to the company. . This means that if a particular employee cannot meet such a safety-related standard due to a disability, the employer may not require compliance for that employee unless they can demonstrate that the individual would constitute a “direct threat” to the health or safety of the employee. employee or other people in the workplace. Determining whether an employee is a “direct threat” is a factual analysis that was discussed in a alert earlier.2

The size of the incentive depends in part on who is administering the vaccination

The Guide generally allows employers to offer incentives to employees who receive a vaccine. However, the extent of the incentives allowed depends on whether the employees themselves have received a vaccination or whether they have received a vaccination administered by the employer or its agent.

There is no apparent limit on the size of the vaccination incentive that employers can offer to employees who use third-party vendors not affiliated with the employer to get their vaccine (i.e. doctor staff or an employee’s pharmacy, or a government-run vaccination center). Such incentives, called “documentation” incentives, would be provided to employees providing documentation that they have received a vaccine in the community. The EEOC explained that “asking for documents or other confirmation showing that an employee has received a COVID-19 vaccine in the community is not a disability-related investigation covered by the ADA.”

However, if the inducement, “which includes both rewards and penalties”, is offered to employees receiving a vaccination administered by the employer or its agent, the inducement should not be “to the point of being coercive. “. The Guide does not specify which incentives can reach the “substantial” or “coercive” level. Nonetheless, the rules proposed by the EEOC in January 2021 for employer welfare programs are at least somewhat informative, even if they were withdrawn later.3 The rules proposed in January 2021 had stated that employers could only offer “de minimis” incentives (for example, a bottle of water or a gift card of modest value) to employees participating in a wellness program in order to to comply with the ADA and the Genetic Information Non-Discrimination Act (GINA). While these proposed rules were withdrawn for procedural reasons (the rules had not been finalized at the time of President Biden’s inauguration), the rationale for offering only de minimis incentives appears to be in line with the current concern. of the EEOC that a strong inducement can be tantamount to “coercion”. While an argument can be made that the threshold at which an inducement becomes ‘coercive’ is significantly higher than a ‘de minimis’ amount, at the very least an employer offering a de minimis inducement should be safe by the standard. of the EEOC.

The reason the EEOC distinguishes between “documentation” incentives and employer-administered immunization incentives is to ensure that employees are not coerced into disclosing their medical information. As noted above, the EEOC has indicated that asking employees to provide documentation that they have received a vaccination in the community is not an “ADA-covered disability survey”. However, when an employer (or its third-party supplier) offers vaccines, pre-vaccination screening questions elicit medical information, and therefore “a very strong incentive could cause employees to feel compelled to disclose protected medical information.” .

Incentives for family members of employees

The Guide also allows employers to offer incentives to their employees in return for providing documents that their family members received a vaccine from an unaffiliated supplier. GINA is not affected by such inducements because the fact that a person has been vaccinated does not constitute “family medical history” or a form of genetic information under GINA.

However, such incentives can only be offered as part of the “documentation” option. Employers cannot offer any incentives in return for vaccinating employees’ family members by the employer or his agent. Employer-administered vaccination incentives would subject the family member to screening questions, and the information so disclosed would allow the employer to have the employee’s family medical history, which is prohibited under GINA .

Employers can still offer vaccines to employees’ family members without incentives, as long as certain measures are taken to comply with GINA. For example, employers cannot require family members to be vaccinated; screening information should be kept confidential and used only for the purpose of providing immunization; and the family member must provide prior written permission before being asked any screening medical questions.

Employers must keep vaccination documents confidential

The EEOC guidelines remind employers that an employee’s documentation of COVID-19 vaccination is considered “medical information” under the ADA (even though documentation showing that an employee has received a COVID-19 vaccination COVID-19 in the community is not a “disability-related survey” covered by the ADA). This information should be kept confidential and stored separately from the employee’s personal files.

Employers can encourage vaccinations without incentives

The EEOC guidelines reiterated that unless they offer incentives or mandate vaccinations, employers can encourage employees and their family members to get vaccinated. This encouragement can be done by providing educational information about COVID-19 vaccines, raising awareness of the benefits, and answering common questions and concerns.

Conclusion

While the new EEOC guidelines don’t answer all vaccine-related questions, they do clarify that employers can offer at least some incentives to employees who receive COVID-19 vaccines. Employers who wish to offer “substantial incentives” to their employees should opt for the “documentation” incentive option, since employers who administer the vaccine themselves (or through their agent) will only be able to offer “non-coercive” incentives. Finally, while useful, it is important to note that the EEOC guidelines are only an interpretation of a federal agency; other agencies and state laws and regulations may impose additional or different requirements for immunization incentives.

1 The original of the EEOC Advice was published on December 20, 2020 and discussed in a previous alert: COVID-19: Mandatory Vaccinations: New EEOC Publication Provides Timely Advice to Employers (December 23, 2020).

The current EEOC guidelines were prepared before the Center for Disease Control and Prevention (CDC) released its guidelines on May 13, 2021, which recommended relaxing guidelines on public mask wear and social distancing for women. fully vaccinated people. See COVID-19: Returning to a Workforce Without a Mask? Not quite yet (May 18, 2021). For now, the EEOC only says that it is “considering the impact of these CDC guidelines” on the EEOC’s own guidelines.

2 COVID-19: Mandatory Vaccinations New EEOC Publication Provides Timely Advice to Employers (December 23, 2020).

3 Our discussion of the proposed rules in January 2021, as well as their subsequent withdrawal, is discussed here (February 17, 2021).



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