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EEOC Atty Promises Updates To Virus ADA Guidance

By Anne Cullen · Apr 16, 2021, 1:29 PM EDT

The U.S. Equal Employment Opportunity Commission has guidance in the works that will shed more light on how employers can balance workplace coronavirus safety and laws barring disability discrimination, according to a letter the agency's legal counsel sent to business groups.

In response to calls for clarity on the legality of coronavirus vaccine incentive programs at work, EEOC acting legal counsel Carol R. Miaskoff said Thursday that the commission is working on publishing advice on this subject and other Americans with Disabilities Act issues that have arisen amid the pandemic.

"The agency expects to update its technical assistance about COVID-19 to address these issues, among others, and that work is ongoing," Miaskoff said in the letter, which was confirmed by a recipient, Edwin Egee, the National Retail Federation's vice president of government relations and workforce development.

Stakeholders have been clamoring for more guidelines on how to keep up their obligations under the ADA while tackling urgent workplace needs tied to the coronavirus. The EEOC's technical assistance document covering this topic was last updated in December.

Some of the biggest questions swirling around the business community revolve around vaccinations, specifically whether employers can offer their workers rewards to persuade them to get a COVID-19 vaccine, and if so, what caliber incentives are legally aboveboard. 

Under the ADA, workplace wellness programs that require participants to hand over sensitive medical data must be voluntary, so weighty rewards and penalties can run afoul of the law by essentially forcing workers to join in.

Several major corporations have already rolled out programs to encourage employees to get inoculated.

Aldi, Trader Joe's and Amtrak are offering team members two hours of pay for each dose they receive, and Dollar General is offering its frontline hourly workers four hours of regular pay. Meat processors JBS USA and Pilgrim's Pride Corp. are providing a $100 vaccine incentive bonus, and discount supermarket chain Lidl has promised to cut each employee a $200 check after a shot. 

However, experts say the heftiest prizes, like those offered by JBS USA, Pilgrim's Pride and Lidl, could be on shaky legal ground

The U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and other industry groups urged the agency to shed light in this arena in February, and the Republican ranking members of the House and Senate labor committees followed up with the same request in April after it went unanswered.

Thursday's letter from Miaskoff, which was addressed to the business groups, promises more advice is in the works covering this subject and others, though some recipients said the agency is still moving too slow.

"We are disappointed that after more than two months the most the EEOC can say is wait some more," said Marc Freedman, the U.S. Chamber of Commerce's vice president of employment policy, in an email.

"Our request was time sensitive since employers were trying to decide what to do as vaccines were becoming available," Freedman said. "Issuing guidance making clear they are not vulnerable to [lawsuits] should have been an easy lift and in the public interest of encouraging people to get vaccinated."

Egee, of the National Retail Federation, emphasized in an email to Law360 that many employers are already using such programs and that polls show they're popular among workers.

"NRF will continue [to] encourage the EEOC to issue further guidance and to define what qualifies as a permissible incentive as broadly as possible," he said.

The EEOC did not immediately respond to a request for comment on the letter. 

--Additional reporting by Vin Gurrieri and Alexis Shanes. Editing by Vincent Sherry. 

Update: This article has been updated to include a response from the U.S. Chamber of Commerce. 

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