The incentivizing of a safe and healthy nation has finally reached the fields and offices of America. For months communities across America have tried their hand at encouraging those who have not yet received a COVID-19 vaccination to step up and out of their comfort zones. Restaurants, bars, local governments – offering everything from shots of alcohol, Krispy Kreme donuts, to a $1 million dollar lottery – have been hard at work hoping to entice more people to get vaccinated. And now, with the EEOC updating its COVID-19 Technical Assistance information, employers too can (within legal limitations) provide incentives to employees to confirm their vaccination status or receive vaccinations within the community or from the employer.
Key points from the May 28, 2021 updated guidance are outlined below:
- It is not a violation of federal EEO laws for an employer to require all employees physically entering the workplace to be vaccinated for COVID-19. However, initiating such a policy requires complete compliance with reasonable accommodation provisions of the ADA, Title VII of the Civil Rights Act of 1964 and other EEO considerations. California employers must also be mindful of Fair Employment and Housing Act reasonable accommodation mandates.
Employers should also keep in mind that a policy – neutral on its face – may have a disparate impact on some individuals or demographic groups who may face greater barriers to receiving COVID-19 vaccinations than others, and that some employees may be more likely to be negatively impacted by a vaccination requirement than others.
- It is not a violation of federal EEO laws for an employer to offer incentives to employees who voluntarily provide documentation (or other reasonable confirmation) of vaccination obtained from a third party in the community (e.g., pharmacy, health care provider, or public clinic). However, employers seeking to obtain vaccination information from their employees, must remember to follow state and federal guidelines for safeguarding employee medical information. It is also important to follow state and federal laws prohibiting discrimination, harassment or retaliation against employees based on a physical/mental disability or medical condition.
- Employers providing vaccines to their employees may also offer incentives to encourage vaccination if the incentives are not coercive. According to the EEOC, “[b]ecause 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.”
- According to EEOC, employers may provide COVID-19 educational material to employees and their family members to inform and educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. Cal/OSHA’s revised Emergency Temporary Standards (ETS) would require the dissemination of such information to employees.
For more information on the EEOC’s updated Technical Assistance information, checkout these EEOC FAQs (Updated vaccination FAQs found at K.1.)