EEOC Provides Guidance on COVID-19 Vaccine Incentives and Documentation

May 28, 2021Alerts

The Equal Employment Opportunity Commission (EEOC) revised its guidance on May 28, 2021 to provide more specific advice on employers’ use of incentives to encourage vaccination against COVID-19. The good news is that the use of incentives generally is permissible under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The EEOC has provided new advice on COVID-19 vaccine documentation.

Here is a summary of the new guidance:

  • If an employer chooses to offer an incentive for an employee to voluntarily provide documentation or other confirmation showing that they received a COVID-19 vaccination, an employer MAY offer incentives.
    • If the employee receives a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community, there is no cap on the amount of the incentive.
    • If the employee receives a vaccination administered by the employer or its agent, the incentive cannot be “so substantial as to be coercive” or be “very large.”
  • Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry prohibited by the ADA — but the employer is required to keep vaccination information confidential.
  • It does NOT violate GINA for an employer to offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.
  • Requiring an employee to receive a COVID-19 vaccine administered by the employer or its agent does NOT violate GINA. The protocol for all three current vaccines does not seek family medical history or any other type of genetic information and the act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information.
  • Requiring an employee to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency or other health care provider in the community does NOT violate GINA.
  • An employer may NOT offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent — but an employer still may offer an employee’s family member an opportunity to be vaccinated.

The ADA prohibits discrimination on the basis of disability and requires that employers maintain the confidentiality of medical information.

GINA restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees. GINA also prohibits employers from obtaining genetic information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member.

For more information on employment issues related to COVID-19, contact Steven K. Ludwig at [email protected] or 215.299.2164; or another member of the firm's national Labor & Employment Department.