The U.S. Equal Employment Opportunity Commission (EEOC) has withdrawn two proposed new rules regarding what type of incentives employers can provide to their workforce as part of an employee wellness program without violating the Americans with Disabilities Act (ADA) or Genetic Information Nondiscrimination Act (GINA).
On January 20, 2021, the White House issued a memorandum instructing the heads of executive departments and agencies to stop all non-emergency regulatory activity until a review by the new administration could be conducted. The memo specifically directed the agencies to withdraw any rules that had not yet been published in the Federal Register and the proposed EEOC rules fell into that category. The EEOC withdrew the proposed rules and removed them from its website.
The proposed rules had originally stated that, in most situations, employers could only offer de minimis incentives like a gift card of modest value or water bottle to employees that participate in a wellness program. Now that the rules have been withdrawn, employers have scant guidance on what, if any, incentives they can use to encourage employees to receive a COVID-19 vaccine.
In the absence of specific EEOC guidance, employers that offer an incentive to employees for receiving a vaccination need to be mindful of providing reasonable accommodations to those employees who cannot receive a vaccine because of existing medical conditions or religious beliefs as required by the ADA and Title VII. Employers may want to offer employees who cannot receive a vaccine another way to earn the incentive, such as attending a COVID-19 safety class.
On its website, the EEOC stated that the next steps for each rule are “under consideration.” While it is likely that the EEOC will eventually issue new guidance on this issue, it is unlikely that new rules will come in time to guide employers since many are in the process or have already established vaccination programs for their employees. Employers considering employee incentive programs for receiving the COVID-19 vaccine should consult with their benefits counsel.
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