June 25, 2021
The Carrot Instead of the Stick: Offering Vaccine Incentives to Employees
by Alexa Cellier, Esq., BakerHostetler
Many employers have decided that mandating vaccination for their staff poses too many legal and personnel challenges. As a result, they have determined the carrot approach is a better alternative.
While the incentives are not quite as enticing as Ohio’s Vax-a-Million Drive, they can certainly sway employees who are unsure whether they want to get the vaccine. The Equal Employment Opportunity Commission recently updated its Technical Assistance Questions and Answers to address these incentives.
Somewhat surprisingly, the EEOC concludes that, under the Americans with Disabilities Act, employers may offer incentives to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community (in other words, not provided by the employer or its agent). The EEOC did not set any restrictions on such incentives. However, if an employer provides incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, the incentive cannot be so substantial as to be coercive. Interestingly, the EEOC’s FAQ references both rewards and penalties as “incentives.” In the proposed guidance, the permitted incentives were going to be “de minimis” items, such as free water bottles, but current guidance indicates the incentives are not so limited in either circumstance.
While employers might jump at this opportunity, they need to keep in mind that they must still provide reasonable accommodations for the incentives to employees who cannot receive the vaccine due to a disability or sincerely-held religious belief. This might include working remotely, completing COVID-19 testing or watching videos about COVID-19 safety practices to qualify for the incentive. Further, keep in mind that the Fair Labor Standards Act might consider some cash incentives to qualify as nondiscretionary bonuses that need to be included in an employee’s regular rate of pay for overtime purposes.
The EEOC also addressed issues involving the Genetic Information Nondiscrimination Act. It concluded an employer may offer an incentive to employees showing their family members were vaccinated by a third party not acting on the employer’s behalf. This is because the fact that someone received a vaccine is not information about the manifestation of a disease or disorder in a family member. Additionally, an employer may offer incentives to employees obtaining vaccines from the employer or its agent, so long as the pre-vaccination medical screening questions do not inquire about genetic information. The screening questions for the three current vaccines do not.
However, an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccine from an employer or agent. This is because the vaccinator would have to ask the family member the pre-vaccination medical screening questions, which would cause the employer to receive the family medical history of the employee.
Overall, the EEOC has approved of the use of incentives by employers to encourage vaccination of employees. If your organization wants to increase vaccination without making it mandatory (with exceptions for accommodations, of course), the carrot might engender more employee support.