The Equal Employment Opportunity Commission (EEOC) has issued updated guidance regarding providing incentives to employees to encourage COVID-19 vaccination, examining various scenarios under the Americans with Disabilities Act (ADA) and the Genetic Information Discrimination Act of 2008 (GINA). The updated guidance can be found here under items K.16 - K.21.

The guidance confirms that under the ADA, as long as the incentive is not so substantial as to be coercive, an employer may provide an incentive (which may include both rewards and punishments) to employees for voluntarily receiving a vaccination administered by the employer or its agents. Because vaccinations require employees to answer disability-related screening questions, a large incentive that could make employees feel pressured to disclose protected medical information is not permitted. This limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider, as long as that provider is not their employer or their employer’s agent.

Employers are reminded that under the ADA, regardless of the circumstances regarding employee vaccination, all vaccination information must be kept confidential.

Under GINA, an employer may offer incentives to employees for getting vaccinated by the employer or its agents, provided that the employer doesn’t acquire genetic information while administering the vaccines. This is currently not an issue as the pre-vaccination screening questions for the available COVID-19 vaccines do not require inquiring about genetic information.

Further, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf (e.g., a pharmacy or health department) that employees or their family members received the vaccination. Doing so does not violate GINA because receiving a vaccination is not information about the manifestation of a disease or disorder in a family member nor is it considered any other form of genetic information.  

However, under GINA, an employer may not offer an incentive to an employee in return for a family member getting vaccinated by the employer or its agent, because such vaccination would require asking the family member pre-vaccination screening questions, which could lead to the employer receiving genetic information about the employee. However, an employer may offer a family member the opportunity to be vaccinated without offering an incentive to the employee, provided it complies with GINA.

In particular, employers must not require that employees have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated. Employers must also ensure that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors or others who make employment decisions for the employees.  In addition, employers need to ensure that they obtain prior, knowing, voluntary and written authorization from the family member before the family member is asked any questions about his or her medical conditions. If these requirements are met, GINA permits the collection of genetic information. 

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

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