Category Archives: GINA

EEOC Issues Updated Guidance Addressing COVID-19 Vaccine Incentives Among Other Issues

Contributed By Steven Jados, May 28, 2021

Medicine doctor and vaccine dose

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.

Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a vaccination administered by the employer or its agent.

As to the first scenario, the EEOC’s guidance says little more than that requesting proof of vaccination is not a disability-related inquiry covered by the Americans with Disabilities Act (ADA), and also does not seek information protected by the Genetic Information Nondiscrimination Act (GINA), and therefore employers may offer incentives to employees who provide proof that they were vaccinated. 

The guidance for the second scenario is a bit more detailed. It states that incentives may be offered, so long as the incentive (whether it is a reward or penalty) “is not so substantial as to be coercive.” The difference between the first and second scenarios is that in the second scenario, employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination inquiry. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

The EEOC’s guidance is that the incentive limitation in the second scenario does not apply to the first scenario—because the first scenario is just asking for proof of vaccination status, which is not a disability-related inquiry in the EEOC’s eyes. However, we recommend caution in providing large incentives in first scenario circumstances, too, given the recency of this EEOC guidance, and the thorny issues and litigation risks that can arise with respect to incentive programs that touch on employee health and medical information.

On the subject of mandatory vaccines, the EEOC’s updated guidance makes clear that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” subject to reasonable accommodation and other EEO considerations. The guidance includes expanded advice for responding to employees who do not want to be vaccinated due to medical or religious reasons or because of pregnancy. (A word of caution: federal EEO laws are not the only game in town, and there is a possibility that other laws could prohibit employers from imposing mandatory vaccine policies—so be careful.)

The EEOC’s next piece of guidance should not come as a surprise to our loyal readers: employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.

The EEOC’s updated guidance also includes several links to resources available for employers to educate their employees about COVID-19 vaccinations and related issues.

As discussed above, issues relating to vaccine incentives—and really any issue relating to COVID-19 vaccines in the workplace—can get thorny very quickly. With that in mind, we recommend engaging experienced employment counsel before wading too deep into these issues.

Federal Court Strikes Down Certain EEOC Wellness Program Regulations, Effective January 1, 2019

Contributed by Steven Jados, January 12, 2018

In a recent decision with a nation-wide effect, the U.S. District Court for the District of Columbia struck down certain provisions of the EEOC’s Wellness Program regulations.

As we have previously discussed, workplace wellness programs generally provide certain incentives to employees as part of programs intended to prevent illness and encourage healthier lifestyles.  But these programs can run afoul of various federal and state anti-discrimination laws, particularly the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), if the programs require employees to disclose private medical information under circumstances that are not truly “voluntary.”

The inherent difficulty with wellness program incentives is the notion that, at some point, a reward or penalty becomes so great that it becomes impossible to refuse.  At that point, the incentives are so coercive that the wellness program can no longer be considered voluntary under the ADA and GINA.

To assist employers with implementing ADA and GINA-compliant wellness programs, the EEOC issued regulations in May 2016 that set an upper limit on incentives (which can take the form of rewards or penalties) linked to wellness program participation of 30% of the cost of employee-only health care coverage.  Under the regulations, the EEOC considered wellness programs that complied with the 30% incentive threshold as falling within the definition of “voluntary.”

In August 2017, however, the D.C. district court ruled that the 30% incentive regulations were improper.  The main shortcoming of the regulations, as identified by the court, is that the EEOC apparently set the 30% threshold without any concrete data or reasoning to support the proposition that an incentive crosses the line from voluntary to involuntary at 30% of the cost of health insurance.  Instead of striking down the regulations entirely at that time, the court gave the EEOC the opportunity to modify the regulations.

In the closing days of 2017, the court revisited the issue and determined that the EEOC was not moving quickly enough to correct the regulations on its own, and the court vacated the 30% incentive regulations—but did so with an effective date of January 1, 2019, in order to minimize disruptions to existing wellness programs and to allow employers sufficient time to modify their wellness programs in the future.

The court also noted that the effective date of January 1, 2019, was intended in part to provide the EEOC additional time to issue new regulations.  Prior to the December ruling, the EEOC told the court that the EEOC intended to issue proposed regulations by August 2018, but that final regulations would not go into effect until 2021.  The court’s response was that 2021 is “unacceptable,” and the court “strongly encouraged” the EEOC to accelerate its timeline.

With all of that in mind, the bottom line is that until the EEOC issues new regulations, employers must consider structuring wellness program incentives with an eye toward documenting, with concrete data and analysis, that the program’s incentives are not so great–and, therefore, not so coercive—that the program becomes involuntary.  Stay tuned, as we will closely monitor any further action and guidance from the EEOC on this issue.