On February 1, a group of organizations representing national employers, including the U.S. Chamber of Commerce, sent a letter to the Equal Employment Opportunity Commission requesting that it “quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans with Disabilities Act and other laws enforced by the EEOC.” The request was necessitated by recent guidance issued by the EEOC that has left employers guessing about the incentives that they can legally provide to employees who voluntarily receive the COVID-19 vaccine.
On December 16, the EEOC released guidance about the interaction between employer COVID-19 vaccination policies and the laws enforced by the EEOC, including the ADA. The guidance generally stated that “if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.” However, the EEOC did not provide any other information about what an employer must do to ensure that its program is considered voluntary or the types of incentives that are legally permissible. As we discussed in an alert last month, the EEOC has also proposed a new rule limiting wellness incentives to awards of de minimis value, such as a water bottle or small gift card.
Faced with uncertainty about which incentives are legally permissible, some employers have been reluctant to wade in while other have adopted vaccination policies providing incentives. Additional guidance from the EEOC will greatly aid employers deciding what type of policy to implement and how best to encourage their employees to receive the COVID-19 vaccine.