We have been getting questions about the extent to which employers may encourage their employees to obtain COVID-19 vaccines when they become eligible.  There are a couple of thorny legal issues that may arise when employers offer incentives in connection with a voluntary employer-sponsored COVID-19 vaccination program.  We are aware that several large employers are currently offering incentives for employees to get vaccinated.

The Americans with Disabilities Act (ADA) strictly limits medical examinations and disability-related inquiries made to employees in connection with wellness programs, which may (and under recently proposed EEOC rules, would) include a vaccination program.  Wellness programs with incentives that include medical exams or involve questions that are likely to elicit information about disability generally must be voluntary.

But since a 2017 court decision, there has been uncertainty surrounding when a wellness program offering employee incentives will shift from “voluntary” to. . .  well . . . not voluntary, based on the value of the incentive involved.

Under the previous administration, the EEOC proposed to limit incentives for certain wellness programs to “de minimis” incentives, such as a water bottle or a modest gift card. The Biden administration has frozen regulations which have not yet taken effect, so the status of those regulations is uncertain.

So where does that leave employers who may wish to offer a voluntary vaccination program or an incentive for employees to get vaccinated? Is an incentive to get vaccinated covered by the wellness regulations? If it is covered, how much of an incentive may an employer offer to encourage vaccination without the program becoming mandatory and therefore subject to the ADA limits?  For example, is granting a PTO day more than a de minimis incentive?

To avoid this uncertainty, an employer may decide not to sponsor a COVID-19 vaccine program and instead simply offer an incentive to employees who submit proof of vaccination from an unrelated party (i.e., obtain a vaccine on their own accord).  In this case, the employer would not be considered to have sponsored a wellness program subject to the ADA.   Nonetheless, other federal and state nondiscrimination laws may be implicated by excessively large incentives.

A number of employer groups, including the U.S. Chamber of Commerce, have signed onto a letter to the EEOC asking for immediate guidance on the level of incentive an employer may offer to encourage employee vaccinations, and other related guidance.

We are closely monitoring developments and will update you as soon as further guidance is offered. In the meantime, if you are considering incentives for employee vaccination, we can assist with navigating these issues.