As we previously blogged, some employers have considered offering cash incentives in order to encourage their employees to get the COVID-19 vaccine. However, such incentives raise thorny issues regarding the Americans with Disabilities Act and Title VII of the Civil Rights Act. Luckily, the EEOC recently issued guidance that sheds some light on these issues.
According to the EEOC, vaccine incentives (which include both rewards and penalties) do not violate the ADA or the Genetic Information Nondiscrimination Act (GINA). As the EEOC has said on multiple occasions, requesting documentation that an employee is vaccinated does not qualify as a disability-related inquiry or an inquiry into an employee’s genetic information. Additionally, the EEOC has stated that an employer may offer an incentive to an employee in return for that employee’s family member getting vaccinated by the employer or its agent.
Unfortunately, the EEOC’s guidance leave some lingering questions:
- The EEOC’s update does not offer guidance on employees who object to the vaccine on religious grounds. Such employees would be excluded from receiving the vaccine incentive, which arguably exposes an employer to liability for a disparate treatment claim under Title VII. Similarly, the update does not address employees who cannot take the vaccine due to a disability. Just as with religious objectors, such employees would be excluded from the incentive, which raises disparate treatment concerns.
- In light of these unanswered questions, some employers might be tempted to just offer the incentive to religious/disabled employees who refuse to get vaccinated. However, this too raises Title VII/ADA issues because it would require these employers to treat some employees differently– i.e., some employees will be entitled to the incentive simply by virtue of their religion or disability, regardless of whether they have been vaccinated.
- As we previously blogged, cash incentives can also be problematic because they might put pressure on religious or disabled employees to get a vaccine they don’t actually want. The EEOC’s guidance anticipates this concern and states that incentives may not be “so substantial as to be coercive.” Unfortunately, no precise definition is given as to what constitutes a “substantial” incentive, other than that they may not be “very large.”