It seems like every week there is a new law, regulation, or “administrative guidance” that pops up related to COVID-19. Last week was no different. On Friday, May 28, 2021, while most of us were getting ready for the Memorial Day weekend, the Equal Employment Opportunity Commission (“EEOC”) thought it would be a good time to revise its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” and drop new guidance on how employers can legally provide incentives to their employees to take COVID-19 vaccinations. While the logic behind some this new guidance may leave one pining for the simplicity of advanced, quantum nuclear physics, employers will need to fall into line to help avoid federal investigations and civil actions.
First, the good news. The EEOC has advised that employers can offer employees incentives to voluntarily provide them documentation of having taken COVID-19 vaccinations. Doing so does not violate that Americans with Disabilities Act of 1990 (“ADA”), nor the Genetic Information Nondiscrimination Act of 2008 (“GINA”) which prohibits genetic information discrimination in employment.
Now, the confusing news. The EEOC has further advised that employers can offer employees incentives to voluntarily take COVID-19 vaccinations provided by employers – but only if the incentive is not overly “substantial.” The EEOC believes an overly “substantial” incentive would be “coercive.” In other words, while a $5.00 incentive does not likely violate the ADA, a $5 million incentive somehow probably does – logic only a federal bureaucrat could understand. Even more confusing, the EEOC does not provide any guidance as to how much incentive will be considered overly “substantial.”
And now, the confounding news. The EEOC has also advised that while GINA permits an employer to offer voluntary COVID-19 vaccinations to an employee’s family members, it prohibits the employer from providing the family members incentives for doing so. In short, while providing free COVID-19 vaccinations to an employee’s family members is lawful, providing free COVID-19 vaccinations and a $5 gift card will get you in hot water – even though both require the family member to provide the same genetic background information during the pre-vaccination medical screening.
God Bless America.