EEOC Releases Long-Awaited Guidance on Vaccinations and Incentives

While millions of Americans were headed off for a long weekend, the EEOC was releasing its long-delayed guidance on incentivizing employees for receiving one of the three approved COVID-19 vaccines.

As we mentioned before, the EEOC has stated that EEO laws do not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodation provisions for both age and religion.  New advice from the EEOC states that employers need to apply their vaccination requirements evenly to employees, and be understanding that some demographic groups may have greater difficulty accessing available vaccines than others.

For those employees claiming they have a disability that requires a reasonable accommodation of not being vaccinated, the EEOC puts the onus on the employee to make it known to the employer that he or she needs an exemption from a vaccine requirement.

In regard to “persuading” employees to get their vaccine, the EEOC has stated that employers can educate employees about the vaccines, and may offer incentives to employees who receive the vaccine.  When offering an incentive, employers can request that employees voluntarily provide confirmation that they received a vaccination on their own.  As we’ve said before, employers may not offer an incentive for having received a vaccine from the employer or its agent that is so substantial as to be coercive, because larger incentives may make employees feel pressured to reveal protected medical information.

However, the new guidance states that the 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.”

Employers must remember to keep an employee’s COVID-19 vaccination confidential – that means if you’re going to hold a drawing, there can be no public announcement of winners, as that would reveal the employee’s confidential information.

For those in Minnesota, while there has been little guidance from the Department of Human Rights, they have provided a link to EEOC guidance on COVID-19 vaccination and how it interacts with disability laws on their webpage.

As a reminder, the EEOC’s guidance does not remove the requirements from the FDA regarding Emergency Use Authorization (EUA) vaccines.  Those receiving a vaccine authorized under an EUA must be informed about the nature of the authorization, and must voluntarily agree to get the vaccine under FDA guidelines.  However, this requirement does not prevent employers from offering incentives for employees who receive the vaccine, as long as they adhere to other legal requirements.

While there are still some things that are unclear to employers, this guidance helps with an employer’s ability to persuade its employees to get vaccinated and return the workplace to some level of normalcy.  Obviously there are going to be individual cases for every employer that will present unique challenges.  If you, or your organization, need assistance in developing a vaccine plan, or working with employees on safely getting them back to the workplace, contact the Wiley Law Office, for legal advice that works.