New EEOC Guidance Tackles COVID Vaccine Incentives

Employers can offer workers perks to encourage COVID-19 vaccinations, but any documentation about workers' vaccination status is confidential medical information that must remain closely guarded, the U.S. Equal Employment Opportunity Commission said in updated guidance Friday.

The latest guidance about COVID-19 vaccines, a topic the agency first addressed in December, is part of a technical assistance document on the EEOC's website that the agency has updated periodically over the past year to answer questions surrounding employers' response to the coronavirus pandemic as they have come up.

"The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information," EEOC Chair Charlotte Burrows said in a statement Friday about the updated guidance. "We will continue to address the issues that were raised at the commission's recent hearing on the civil rights impact of COVID-19."

Among the topics the new guidance addresses is the extent to which employers can offer workers incentives to get vaccinated — a question that has been raised as many employers have opted to encourage workers to get vaccinated as opposed to mandating it.

The commission said employers won't run afoul of the Americans with Disabilities Act if they offer an incentive to employees to voluntarily provide proof that they got vaccinated by a third party, such as a pharmacy or a vaccination clinic, saying that information "is not a disability-related inquiry covered by the ADA."

However, in another section of its guidance, the commission said that documentation showing an employee received a vaccination does qualify as confidential medical information under the ADA, which is subject to a heightened level of protection.

"The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination," the agency said in its guidance. "This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee's personnel files under the ADA."

If employers set up a system in which they administer the vaccine themselves on a voluntary basis, businesses can also offer employees incentives — be they perks or penalties — as long as they are "not so substantial as to be coercive," the EEOC said.

"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," the agency said in its guidance. "However, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer."

The EEOC's latest round of guidance comes after months of clamoring by employers and trade organizations asking for answers on various tricky issues involving the interplay of COVID-19 and civil rights laws.

Burrows and other commissioners and EEOC officials have themselves hinted in recent public appearances that new pandemic-related guidance was in the offing, including at a recent commission meeting dedicated to the agency's virus response.

In fleshing out its stance in Friday's guidance, the EEOC also discussed how incentives can be offered in the context of the Genetic Information Nondiscrimination Act, saying that employees can lawfully be offered an incentive in exchange for receiving an employer-administered vaccine.

"Under GINA, as long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated," the EEOC said. "Because the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information, employers may offer incentives to their employees for getting vaccinated."

But the commission warned that employers won't be in compliance with GINA if they offer workers an incentive in exchange for the worker's family members receiving a vaccine administered by the employer, since the vaccinator would have to ask the family member medical questions as part of the screening process.

"Asking these medical questions would lead to the employer's receipt of genetic information in the form of family medical history of the employee," the EEOC said in its guidance. "The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information. Therefore, the employer may not offer incentives in exchange for the family member getting vaccinated."

"However, employers may still offer an employee's family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance," the commission added, outlining some of the measures that employers in that situation should take.

Besides questions relating to incentives, the EEOC on Friday also reaffirmed and refined previously issued guidance and tackled other new vaccine-related questions.

Among them, the commission said that employers who receive a request for a disability accommodation from a fully vaccinated worker that is rooted in a "continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection" must process it the same as it would any other reasonable accommodation request.

The agency noted that some people who are immunocompromised "might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals."

"If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship," the EEOC said in its guidance.

--Editing by Haylee Pearl.

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