EEOC Updates Guidance Regarding COVID-19 Vaccinations
October 26, 2021
On October 13, 2021, the EEOC updated its previously issued COVID-19-related compliance guidance concerning employer-provided vaccination incentives for employees and their family members under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and other federal employment nondiscrimination laws. Overall, the updated guidance does not significantly change its prior guidance on vaccination incentives; instead, the revised language more clearly describes the COVID-19 vaccination incentive limits under the ADA and GINA.
The updated Q&As state that neither the ADA nor GINA limit the incentives an employer may offer to encourage employees (or their family members) to voluntarily receive a COVID-19 vaccination when the vaccination is administered by a provider that is not affiliated with their employer (e.g., the employee’s personal physician, a pharmacy or a public health department).
However, when the employer or its agent (defined as an individual or entity having the authority to act on behalf of, or at the direction of, the employer) administers the vaccine, the ADA’s rules on disability-related inquiries apply because the pre-vaccination screening questions are likely to elicit information about a disability. In this case, the amount of the incentive cannot be “so substantial as to be coercive.” Unfortunately, the EEOC did not expand on what amount would be considered coercive.
Employers who are considering imposing a surcharge or incentive to encourage COVID-19 vaccinations should also consider the application of the HIPAA wellness program rules. On October 4, 2021, HHS, IRS, and DOL released guidance on COVID-19-related compliance guidance, including the HIPAA wellness rules. We reported those updates in an article in the October 12, 2021, edition of Compliance Corner which can be found here.
Moreover, the updated EEOC guidance states that laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19. However, if employers decide to implement a vaccine mandate, they are required to provide reasonable accommodations for employees who decline to be vaccinated because of a disability or a sincerely held religious belief, practice or observance, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
Employers considering vaccine mandates, surcharges or incentives should consider the EEOC’s guidance and consult with employment law.
EEOC, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Section K »