EEOC Guidance Removes Limits On Certain Vaccination Incentives


June 2, 2021

Employers who wish to incentivize employees to become vaccinated against COVID-19 have been inhibited by EEOC guidance which allowed only minimal incentives, such as a water bottle. However, on May 28, the EEOC issued new guidance which removed that limitation, at least in part.

The new guidance distinguishes vaccinations administered by the employer and those administered by a third party, such as a hospital, a pharmacy or a community organization. With respect to employer administered vaccinations, the EEOC stated that incentives may be offered as long as they “are not so substantial as to be coercive.” The guiding factor is the prohibition against employers gathering the information about protected medical conditions which would need to be provided to the employer by the employee to become eligible to be vaccinated.

However, that same principle does not apply to third party vaccinations, since, obviously, that medical information does not come into the possession of the employer. Accordingly, there are no restrictions on that class of incentives. At the same time, the EEOC made it clear that employers may not offer incentives to an employee in return for the vaccination of an employee’s family member. The employer may, however, offer vaccinations to an employee’s family member if no incentives are offered.

Obviously, this guidance comes a bit late in the game, and employers who now seek to implement such an incentive program for unvaccinated employees may face a backlash from those employees who received the vaccination without being incentivized to do so.

Finally, the EEOC restated its position that requesting documentation or other confirmation showing that an employee has received a COVID-19 vaccination is permissible, at least under federal law. However more than 20 states, including Iowa and South Dakota, have laws or executive orders from the governors of those states prohibiting certain uses of “vaccine passports” which would include a vaccine certification issued at the place and time of the vaccination, and perhaps other documents such as signed declarations confirming that the individual received the vaccine. Virtually each of those laws and orders are separate and distinct from those in other states. Public and private employers who wish to seek employees’ documentation of COVID-19 vaccination should carefully review the laws in each state in which they wish to make such a request and confirm that the request for documentation is permissible.

Labor and Employment:

Abbey Moland
amoland@mcgrathnorth.com
(402) 633-9566

Aaron Clark
aclark@mcgrathnorth.com
(402) 633-9580

Ruth Horvatich
rhorvatich@mcgrathnorth.com
(402) 633-1521

Steve Bogue
sbogue@mcgrathnorth.com
(402) 633-1491

Cody Brookhouser-Sisney
cbrookhouser-sisney@mcgrathnorth.com
(402) 633-6891

Diana Morales McFarland
dmoralesmcfarland@mcgrathnorth.com
(402) 633-9563

Britni Summers
bsummers@mcgrathnorth.com
(402) 633-6894

 

 

Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.

For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.

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