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EEOC Blesses Vaccine Incentives, But Gray Areas Remain

By Anne Cullen · May 28, 2021, 7:28 PM EDT

The U.S. Equal Employment Opportunity Commission's latest vaccine guidance cleared businesses to reward workers for getting a COVID-19 shot, which employment experts lauded as welcome news. But lawyers say they still lack agency direction on some key areas surrounding vaccine incentives. 

The commission's update, unveiled Friday morning as part of a running technical assistance document on the EEOC's website, made clear that a company can offer workers rewards or dole out penalties, in some instances without any limits on the value of the incentive, to get the jab.

Employment lawyers generally said they agreed with the agency's stance on COVID-19 incentive programs, noting that the guidance gives company leaders the green light to focus on workplace safety.

"It is good news for employers who want to encourage workers to get vaccinations and encourage them to be on-site because companies are going to be in a less risky situation with COVID if they have a high-vaccinated population," said Andrew R. Turnbull, of counsel at Morrison & Foerster LLP.

Businesses with this kind of virus safety measure already in place can continue without worrying about winding up in the crosshairs of the EEOC, experts said. 

"Many of our clients are offering gift cards to employees who receive the vaccine," said Scott Mirsky, an employment principal at Paley Rothman. "Now we know that this is permissible."

But some areas still remain murky, including what incentives will be considered too valuable in situations where there are caps, and whether businesses must offer workers who have religious or medical objections to the COVID-19 vaccine the option to get that reward, too. 

"There are some questions that folks are facing that are unanswered, particularly around incentives," said Jim Paretti, a shareholder at Littler Mendelson PC's Workplace Policy Institute and former top EEOC adviser.

While the agency cleared businesses to offer whatever value incentive they want for a worker who receives a vaccine from a third party, the calculus changes if the business itself is sponsoring the vaccination program, according to the new guidance.

In those circumstances, the EEOC said incentives are fine, but they shouldn't be "so substantial as to be coercive." Employment lawyers said it's still unclear what the agency would consider as reaching that threshold.

"The EEOC reminds us today that if an incentive is so great as to render something coercive or involuntary, then that's a problem," Paretti said. "I would've loved five examples where they said, 'This is too much,' but they didn't provide that."

The agency has an interest in curbing these rewards because the Americans with Disabilities Act — which prohibits bias against individuals with disabilities — mandates that workplace health initiatives be voluntary if they solicit medical details from participants, like the result of a health screening or someone's medical history.

Weighty prizes or penalties can essentially render these programs involuntary, forcing an employee into joining up and handing over sensitive medical data and violating the ADA.

The EEOC said Friday that "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."

However, it didn't go further to inform businesses what might cross the line. 

Jackson Lewis PC principal Tracey Wallace lamented the lack of clarity on this point.

"How do you determine what is too valuable?" Wallace said. "I think it would've been better if there were some examples offered."

The agency also shied away from offering any clarification on whether businesses must offer alternative routes for workers to get the incentive when they can't get the shot for medical or religious reasons.

Under the ADA, employers must offer disabled employees a reasonable accommodation to enjoy the same "benefits and privileges of employment" afforded to their peers who don't have a disability. Title VII mandates that employers go through a similar process to accommodate a worker's sincerely held religious beliefs.

Disability law expert Jonathan Mook of DiMuroGinsberg PC said whether businesses must install another pathway for disabled or religious workers to get a vaccine incentive remains a "puzzle."

"The guidance discusses the need for an employer to accommodate employees who are not vaccinated due to disability/religious reasons," Mook said. "But, how does an employer reasonably accommodate when a vaccine incentive is involved?"

--Editing by Abbie Sarfo.

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