Hunton Employment & Labor Perspectives

Covid-19 has left employers who want their employees back in the office in a difficult position. With the pandemic still raging, many employees are fearful of returning to the office with unvaccinated peers. In order to ease their employees’ concerns and provide a safe work environment, some employers are offering incentives to get vaccinated. Some existing vaccine incentives include gift cards, time off after receiving the second dose, pay for the time spent getting the vaccine, or bonuses ranging from $75 to $500. Although offering vaccine incentives may seem like a solution at this time, employers should be mindful of the legal ramifications of providing their employees with incentives for receiving the vaccine.

The EEOC enforces the ADA and limits general wellness incentives. To date, the EEOC has released only limited guidance on vaccine incentives in particular, merely suggesting that employers keep incentives to de minimis gifts, such as “a water bottle or gift card of modest value,” but it has not explained the boundaries of what incentives are acceptable. Although many businesses have asked the EEOC to clarify the legality and boundaries of vaccine incentives, these remain largely unanswered questions.

As the law stands, employers may not discriminate against their employees. If they offer incentives to receive a vaccine that some of their employees cannot receive due to religious or health reasons, they are in danger of potentially violating discrimination laws because some of their employees cannot receive that benefit. Federal discrimination law also prohibits employers from making incentives so persuasive as to be coercive, but de minimis benefits will likely not cross that line.

Further, the ADA forbids employers from coercing employees into providing their disability-related information, which could be solicited by the screening questionnaires involved in receiving Covid-19 vaccines. Employers must be careful not to elicit details about their employees’ disabilities, especially when they are the ones offering the vaccine.

Many businesses have petitioned the EEOC to take a broad approach in defining what incentives will be legal, but without that guidance, employers must be careful not to trigger the ADA or discrimination laws by offering coercive or involuntary incentives to their employees. The safest way to do this is to keep any incentives small in value until the EEOC provides more clarification.