Let’s Make a Deal

The Equal Employment Opportunity Commission (EEOC) recently issued guidance about whether employers may offer incentives to employees or their family members to get vaccinated for COVID-19. Although the guidelines are general in nature and don’t provide specific answers about the amount you may offer as an incentive, they do provide some clarity on the do’s and don’ts.

Can You Require Employees to Get Vaccinated?

The EEOC guidelines allow employers to require employees to get vaccinated, but with two major caveats:

First, employers must comply with the Americans with Disabilities Act (ADA). Some employees may not be able to receive the vaccine for health reasons, and you must reasonably accommodate them unless you can show a direct threat from them not being vaccinated.

A direct threat must be an “individualized assessment of the employee’s present ability to safely perform the essential functions of the job,” measured with reference to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” A direct-threat determination “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.” Given the current science and level of the virus in the United States, it’s difficult to imagine many instances where an employer can show a direct threat.

Second, you also can’t mandate a COVID-19 vaccination if the employee has a valid religious objection. You must reasonably accommodate a worker who can’t obtain a vaccination because of a disability or for religious reasons. Reasonable accommodations may include:

• Allowing the employee to work from home;
• Continuing a mask mandate in the workplace;
• Continuing social distancing in the workplace; or
• Providing the employee with a separate space to work.

In addition to ADA and religious considerations, state laws may prohibit mandating employees to be vaccinated. To date, Wisconsin has no such prohibition. Pregnant employees should also receive an accommodation under Title VII of the Civil Rights Act of 1964 if they don’t wish to be vaccinated while pregnant.

Can You Offer an Incentive?

The EEOC has broken down incentives into two categories: the first for employees to get vaccinated outside of work, and the second for them to receive the shots at an employer-sponsored vaccination clinic. Generally, the agency is OK with employer incentives for employees to get vaccinated outside of work. It has cautioned, however, against employers providing any meaningful incentive for employer-sponsored vaccination clinics.

The EEOC has said you cannot use an incentive for your sponsored vaccination clinics if it is “coercive.” The agency hasn’t defined what “coercive” means. To be on the safe side, however, you shouldn’t offer incentives for employer-based vaccination clinics. For employees vaccinated outside of work, you may offer incentives to them to get the shots.

Under the Genetic Information Nondiscrimination Act (GINA), you may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on your behalf (such as a pharmacy or health department) that they or their family members have been vaccinated. If you ask them to show the documentation or other confirmation, it isn’t an unlawful request for genetic information under GINA because:

• The fact someone received a vaccination isn’t information about the manifestation of a disease or disorder in a family member (known as family medical history under GINA); and
• It isn’t any other form of genetic information.

GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information) therefore don’t apply.

Under GINA, as long as you don’t acquire genetic information while administering the vaccines, you may offer incentives to employees for getting vaccinated. Because the prevaccination medical screening questions for the three COVID-19 vaccines now available don’t inquire about genetic information, you may offer the incentives.

Because vaccinations require employees to answer disability-related screening questions, a very large incentive could make them feel pressured to disclose protected medical information when getting the shots in the workplace or at an employer-sponsored clinic. The limitation doesn’t apply, however, if you offer an incentive to them to voluntarily provide documentation or other confirmation that they received a COVID-19 shot on their own from a third-party provider that isn’t their employer or its agent.

Can You Require Employee’s Family Members to Get Shots?

The EEOC guidelines have interpreted GINA as not permitting employers to require employee family members to get vaccinated. Accordingly, while you may mandate your employees to get the shots (absent ADA, religious, and pregnancy considerations), you may not require their families to get vaccinated.

You can provide access to vaccines for employees’ family members. You may offer the shots to them if you take certain steps to comply with GINA:

• You must not require employees to have their family members get vaccinated or penalize your workers if their relatives decide not to get the shots.
• You must ensure all medical information obtained from family members during the screening process (1) is used only for the purpose of providing the vaccination, (2) is kept confidential, and (3) isn’t provided to any managers, supervisors, or others who make employment decisions for the employees.
• You must obtain knowing, voluntary, and written authorization from the family members before they are asked any questions about their medical conditions.

If the requirements are met, GINA permits the collection of genetic information.

Under GINA’s Title II health and genetic services provision, you may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from your company or its agent. Providing such an incentive would require the vaccinator to ask the family member the prevaccination medical screening questions, which include medical questions about the family member. Asking the questions would lead to your receipt of genetic information in the form of the employee’s family medical history.

The regulations implementing Title II prohibit employers from providing incentives in exchange for genetic information. Therefore, you may not offer incentives in exchange for the family member getting vaccinated. You may still offer the family member the opportunity to be vaccinated by your company or agent if you take certain steps to ensure GINA compliance.

Does Proof of Vaccine Have to be Kept Confidential?

Asking employees if they have been vaccinated isn’t an improper medical inquiry. If you keep a record of whether an employee has gotten the shots, however, you must keep it confidential under the ADA. While several federal appeals courts have found otherwise, it is best practice to keep the records confidential and separate from the employee’s personnel file.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.