E-lert by Craig F. Novick | June 3, 2021
On May 28, 2021, the EEOC updated its Technical Guidance pertaining to COVID-19. A copy of the updated Technical Guidance can be found on the EEOC’s website.
Among other things, the EEOC provided some guidance as to COVID-19 vaccinations, including updates addressing incentives for voluntary COVID-19 vaccinations. As it applies to incentives for voluntary COVID-19 vaccinations, a few key points from the updated EEOC Technical Guidance are:
- When an employer (or its agent) is not administering the vaccination itself, the employer may offer an incentive for the employee to voluntarily provide documentation or confirmation that he/she has received the vaccination.
- When an employer (or its agent) is administering the vaccination itself to its employees, the employer may offer an incentive so long as the incentive is “not so substantial as to be coercive.” The Technical Assistance does not specifically address what would constitute a “coercive” incentive other than to imply that a very large incentive could be viewed as being coercive. The Technical Assistance points out that this incentive limitation does not apply to the scenario where the employer is providing an incentive to an employee for voluntarily providing documentation or other confirmation that he/she received the vaccination from a third-party that is not the employer or an agent of the employer.
- When an employer (or its agent) is not administering the vaccination itself, the employer may offer an incentive to an employee to voluntarily provide documentation or confirmation that his/her family members are vaccinated.
- When an employer (or its agent) is administering the vaccination itself, an employer is prohibited from offering an incentive to an employee for the employee’s family members being vaccinated.
- Employers may offer an employee’s family members the opportunity to be vaccinated without providing incentives to the employee. However, an employer is prohibited from requiring that an employee’s family members be vaccinated.
- Information pertaining to vaccinations must be kept confidential.
In instances where employers are administering COVID-19 vaccinations to employees or employees’ family members employers must make sure to adhere to various laws that may apply, including the Genetic Nondiscrimination Information Act (GINA). Further, the EEOC’s Technical Assistance provides guidance as to the federal laws which the EEOC enforces including GINA and the Americans with Disabilities Act (ADA). The Technical Assistance does not provide guidance as to the applicability of state laws, including Florida law. As such, prior to offering an incentive to an employee for the employee or his/her family member to receive a COVID-19 vaccination, we recommend employers reach out to employment counsel to address various issues that may be implicated.