EEOC Urged To Clarify Legality Of Vaccination Incentives

By Alexis Shanes
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Law360 (February 2, 2021, 2:02 PM EST) -- Doubts about whether businesses can provide perks to persuade workers to get a COVID-19 vaccine without violating discrimination law are making employers reluctant to pitch in and help get people inoculated, business groups warned the U.S. Equal Employment Opportunity Commission.

In a letter sent Monday to EEOC Chairwoman Charlotte Burrows, 42 business groups urged the agency to take a broad approach to defining what vaccine incentives are legal. The signees included the U.S. Chamber of Commerce, the National Restaurant Association, the ERISA Industry Committee and the National Retail Federation.

"Employer-provided incentives can assist governments in quickly and efficiently distributing vaccines," the letter said. "Legal uncertainty about providing such incentives, however, has many employers concerned over liability and has made them hesitant to act."

The EEOC enforces the Americans with Disabilities Act , which places limits on employer-provided wellness incentives to avoid coercing employees into giving up disability-related information.

Under the ADA, wellness programs that ask for disability information are voluntary. In its COVID-19 guidance, the EEOC said the vaccine itself is not a medical exam, but prescreening questions could cause employees to share details about disabilities, triggering the ADA.

Early last month the EEOC issued a proposed rule to clarify the reach of wellness incentives, limiting them to small awards such as "a water bottle or gift card of modest value."

In the Monday letter, the business groups noted that such incentives "have been closely scrutinized." But they asked the EEOC to differentiate between the vaccine and other wellness initiatives, saying the "paramount needs" of the pandemic outweighed arguments for treating the inoculations like other programs.

Some major employers already have announced vaccine incentives. Aldi and Dollar General said last month they would pay employees for up to four hours of work to allow them to get the vaccine. Others have raised the possibility of gift cards or time off after the second vaccine dose, which causes some recipients to develop side effects.

A representative of the EEOC did not immediately respond Tuesday to a request for comment.

A representative of the Chamber of Commerce did not immediately return a request for comment.

--Editing by Tim Ruel.

For a reprint of this article, please contact reprints@law360.com.

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