EEOC Issues Updated Guidance on Employer Vaccine Incentives

December 2, 2021
Hall Benefits Law, LLC

The Equal Employment Opportunities Commission (EEOC) recently updated its guidance regarding COVID-19-related compliance for various federal employment nondiscrimination laws. The EEOC had previously issued guidance on coronavirus compliance issues under certain laws, including the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The revised guidance reveals that neither the ADA nor GINA limit the incentives an employer may use to encourage employees to receive a COVID-19 vaccination or provide confirmation of vaccination, voluntarily. The only caveat is that the health care provider administering the COVID-19 vaccine may not be the employer or its agent. If the employer and the party administering the vaccine are the same, the value of the incentive may not be so substantial that it is considered coercive. ADA rules on disability-related inquiries apply in this situation.

The update does not substantively change the EEOC’s prior guidance on vaccination incentives under the ADA and GINA. Still, it revises the guidance’s language to more clearly state that neither law limits incentives when a provider other than the employer or its agent administers the vaccine. To comply with GINA, an employer cannot offer any incentives to an employee in exchange for a family member’s receipt of a vaccination, administered by the employer or its agent.

While incentives subject to the ADA cannot be “so substantial as to be coercive,” when the employer or its agent administers the COVID-19 vaccine, the revised guidance does not clarify the meaning of these terms.

Employers implementing vaccination incentives are advised to continue monitoring agency guidance, including the recent tri-agency FAQs on applying HIPAA wellness program rules to vaccine incentives. 

For more information, please see the following: 

  • EBIA’s HIPAA Portability, Privacy & Security manual at Section XI. I (“Wellness Programs Must Meet Specific Nondiscrimination Requirements”), 
  • EBIA’s Consumer-Driven Health Care manual at Section VI.H (“Wellness and Disease-Management Programs: ADA Considerations”), and 
  • EBIA’s Group Health Plans Mandates manual at Sections XX.F (“ADA Considerations for Wellness Programs”) and XXII.E (“GINA and Wellness Programs”).

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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