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June 7, 2021

EEOC Advises Businesses On COVID Vaccine Incentives For Employees

On May 28, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance outlining the types of incentives businesses can offer employees to encourage them to get a COVID-19 vaccine.

The guidance, which is available here and which the law firm Kelley Drye summarizes here, said:

  • Federal law does not prevent an employer from requiring all employees physically entering the workplace to get a vaccine so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity (EEO) considerations. Other laws not in EEOC’s jurisdiction may place additional restrictions on employers, however.
  • Employers must keep in mind that, because some individuals or groups may face barriers to receiving a vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.
  • If employers choose to obtain vaccination information from their employees, they must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated as long as those incentives are not coercive. Additionally, because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
  • Employers may provide employees and their family members with information educating them about COVID-19 vaccines and the benefits of vaccination.

A recent article in IndustryWeek, meanwhile, discussed the “reasonable accommodations” manufacturers can provide to employees who cannot be vaccinated. These include:

  • Continued masking and use of personal protective equipment and proper sanitation;
  • Providing a work location that is separated from others;
  • Moving the employee from a people-facing role to one that limits their contact with other employees and the public; and
  • Offering a leave of absence under the Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA), if applicable or appropriate.

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