Several employer groups jointly wrote to the EEOC at the beginning of the month asking the EEOC to clarify the extent to which employers may offer financial incentives to employees who take the COVID-19 vaccine without running afoul of the Americans with Disabilities Act (ADA).

Under the ADA, employee wellness programs must be truly “voluntary.” Employers cannot do anything related to a wellness program that would coerce an employee into providing disability-related information. In 2017, courts struck down regulations that allowed financial incentives, such as premium discounts, for wellness programs. Early this year, the EEOC proposed a rule to clarify that modest incentives, like water bottles and modest gift cards, would be permissible as wellness program incentives.

The EEOC said that the COVID-19 vaccine is not a “medical examination” under the ADA on its own; however, the prescreening questions before vaccination could elicit disability-related information, bringing the vaccine within the ADA’s protections.

The business groups urged the EEOC to treat the COVID-19 vaccine differently than wellness programs. Even without guidance from the EEOC, some employers, particularly those employing grocery store employees, have already announced incentives to employees who take the COVID-19 vaccine. Examples of employee incentives offered thus far: extra pay, time off work, free ride share rides, and cash incentives.