On March 2, 2021, President Biden announced that there will be enough COVID-19 vaccines for “every adult” in the United States by the end of May 2021. Given the current lack of vaccine availability, this announcement signals a light at the end of the tunnel for everyone, not the least of which are employers eager to get employees back to in-person work.
Many employers have been considering the best way to implement a vaccination program to maximize the number of employees that get vaccinated. Some of the most common questions about these programs include:
- Can you make it mandatory? (Read more on this question here and here.)
- Can you offer incentives? (Keep reading for answers!)
- What are the legal implications of a vaccination program?
COVID-19 Vaccination Incentives: What’s Permissible?
In January 2021, the EEOC proposed rules that provided guidance on vaccine incentive programs that do not run afoul of the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or Title VII of the Civil Rights Act. The proposed rules stated that employers could offer a “de minimis” incentive for employees to receive a COVID-19 vaccination. While the EEOC did not clearly define “de minimis,” the proposed rules offered a few examples of acceptable incentives, like water bottles or a gift card of “modest value.”
However, because the January 2021 proposed rules were not published in the Federal Register by the inauguration date, the Biden administration formally withdrew them. While this leaves a gap in the current guidance from the EEOC, the proposed rules still provide a useful roadmap to employers who want to develop a COVID-19 vaccination incentive program.
Vaccination Incentive Programs: Considerations
Any vaccination incentive program must take into account those employees who cannot or will not receive a COVID-19 vaccine as a result of medical conditions or religious beliefs. Keep in mind that the ADA requires employers to provide accommodations to employees with disabilities to ensure those individuals enjoy the same “benefits and privileges of employment,” and Title VII requires similar accommodations for employees’ sincerely held religious beliefs. Additionally, under GINA, an employer may not use genetic information to make decisions related to the terms, conditions, and privileges of employment.
With this in mind, if you plan to create a vaccination incentive program for employees, you must be sure that the incentive is not too valuable but valuable enough to encourage participation. If that sounds confusing, it is. The EEOC proposed regulations noted that an incentive that was more than de minimis could coerce employees to divulge confidential medical information to get the incentive. So, stick to water bottles and the like (although some employers have announced that they are paying regular wages for a set amount of time to get the vaccine). Similarly, if the incentive is really valuable, employees who decline to receive a vaccination on disability or religious grounds may be denied an “employment benefit” as a result. Because of this, you should consider alternative ways for those employees to earn the incentive, such as additional COVID-19 training.
While these are the baseline legal considerations, you should also pay attention to whether your incentive program qualifies as a “wellness program” that implicates HIPAA’s non-discrimination provisions or whether the program implicates GINA’s prohibition against employers using genetic information to make decisions related to the terms, conditions, and privileges of employment.
The EEOC may have withdrawn its guidance, but the withdrawn rules themselves provide a brief sketch of the considerations an employer must take when designing a vaccine incentive program. While these considerations are not exhaustive, they serve as a useful starting point for employers eager to see their employees vaccinated and back to the “new normal.”
In the coming months, as the vaccine becomes more available, be sure to pay close attention to any additional guidance from the EEOC or the DOL regarding vaccine programs. In the meantime, remember to consider those employees who will not or cannot receive the vaccine as you design and implement your program.