June 3, 2021

EAA Vaccine Incentives

Good news – more and more people in the United States are getting the COVID-19 vaccine.

The CDC says more than 168 million people in the country – a little more than half the US population – has received at least one dose of the vaccine. Of those, 136 million have been fully vaccinated.

However, as the vaccines are now widely available to every adult in the US, workplaces have begun opening their doors for employees to return. Some have even followed local and CDC guidelines and loosened their COVID-19 restrictions – meaning those fully vaccinated employees no longer need to wear a mask in the workplace.

That’s led to questions surrounding vaccines and the workplace. We’ve fielded some of those questions from employers.

Can an employer offer incentives to employees who get a COVID-19 vaccine?

According to the Equal Employment Opportunity Commission (EEOC), this is allowed under the Americans with Disabilities Act (ADA). However, the incentive – which includes rewards and penalties – cannot be so substantial it could be seen as coercive.

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 incentive limitation doesn’t apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation they received a COVID-19 vaccine on their own from a third-party provider that is not their employer or an agent of their employer.

The same also applies under the Genetic Information Nondiscrimination Act (GINA), where it is not an unlawful request for an employer to ask an employee to show documentation or proof the employee received a COVID-19 vaccine. This is because the fact someone received a vaccination is not information about the manifestation of a disease or disorder in a family member, nor is it any other form of genetic information.

What kind of incentives can an employer offer?

The incentives offered to employees can be modest – company apparel or swag could be an acceptable incentive.

Some companies like Dollar General and Aldi offered paid time off and cash stipends to employees that received the COVID-19 vaccine. President Biden also called on employers to offer PTO to employees that receive their vaccine.

However, similar to how employers can mandate employees receive a COVID-19 vaccine, they must be mindful of any anti-discrimination and safety laws, the same applies to offering incentives. Be prepared for some employees to not want to get the COVID-19 vaccine.

That’s what employers are asking us today. If you have questions you want answered in real time, email us at askapex@apexbg.com.

Brooke Salazar

Authored By

Brooke Salazar, JD, PHR

HR Consultant, Apex Associate Counsel and DE&I Officer
Meet Brooke