EEOC Gives the Green Light for Limited Incentives for COVID-19 Vaccinations

Allen Smith, J.D. By Allen Smith, J.D. May 28, 2021
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EEOC
The Equal Employment Opportunity Commission (EEOC) issued guidance on May 28 that, under equal employment opportunity laws, employers may offer limited incentives to employees to be vaccinated, so long as the incentives are not coercive. But the agency cautioned that a “very large incentive” could make employees feel pressured to disclose protected medical information. And it noted that other federal, state and local laws may come into play.

Large Exception to Limits on Incentives

Employer incentives for employees to disclose their vaccination status are not substantially limited if employees got the vaccine voluntarily from someone other than their employer, according to Jonathan Segal, an attorney with Duane Morris in Philadelphia.       

This exception to the limitation on vaccine incentives is no more coercive than mandatory vaccinations, he noted. The EEOC permits mandatory vaccinations for all employees physically entering the workplace, provided there are reasonable accommodations. Some argue mandatory vaccinations may be challenged under laws that the EEOC does not enforce, such as state laws.

Segal added: "At least under the guidance, an employer should be able to offer a very large incentive—for example, $500—so long as employees are vaccinated by their own provider and not by the employer or a provider acting as an agent of the employer, such as a designated pharmacy or health care provider. Of course, a federal court could come out differently and state law could be more restrictive."

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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