Before your business rewards employees for getting the COVID-19 vaccine, read this. (It may save you a lawsuit.)

According to a recent SHRM survey, most companies will encourage employees to get the COVID-19 vaccine — but not require it. Many employers, like this one, may even incentivize employees to get the vaccine by offering them money or extra PTO days to get the needle.

But, if you’re thinking about doing something similar, slow your roll. According to the U.S. Equal Employment Opportunity Commission (EEOC), you may end up unwittingly violating the Americans with Disabilities Act (ADA).

It’s not that you can’t offer any incentive. Rather, there are limits. But, before we get to that, I need to give you a little background on wellness programs and cue the music.

What is a wellness program?

Basically, it’s where an employer offers health promotion or disease prevention activities, like a COVID-19 vaccination. A wellness program could be part of an employer’s group health plan or may qualify as group health plans themselves. Heck, an employer can have a wellness program even if it does not offer a group health plan or health insurance coverage.

The issue arises where these wellness programs ask employees to provide information about their medical history. Under the ADA, that’s probably a disability-related inquiry, i.e., questions that are “likely to elicit information about a disability,” and a medical examination, i.e., procedures or tests that seek information about an individual’s physical or mental impairments or health.

Think of the last time you got a flu shot. You probably had to answer a series of questions like this. The ADA covers that.

A water bottle or a gift card of modest value.

Last week, the EEOC announced that it had issued proposed regulations governing wellness programs under the ADA and the Genetic Information Nondiscrimination Act (GINA). As part of this new guidance, the EEOC instructs that employers generally may offer no more than “de minimis incentives” to encourage employees to take part in an employer’s wellness program that asks participants to provide medical information.

What the heck are de minimis incentives? Basically, we’re talking about a water bottle or gift card of modest value. The EEOC frets that anything more would make employees feel coerced to disclose protected medical information to receive a reward.

(There is more generous a “safe harbor” for health-contingent wellness programs that are part of or qualify as group health plans.)

So, the days of offering paid gym memberships for rewarding employees exercise, weight loss, and an overall healthier lifestyle may be coming to an end.

Other lingering questions.

The EEOC wellness program proposal must got through a public comment period before it gets finalized. So, nothing is set in stone yet.

But, for now, you may have some questions.

1. Can we mandate that all employees get the vaccine? For now, yes, subject to religious and disability accommodations.
2. Can we encourage employees to get the vaccine without providing any incentive? Sure, go ahead.
3. Eric, what did you think of the third season of Cobra Kai? Just give it the Emmy now.
4. What should we do now if we want to incentivize employees to get the vaccine with something more than a water bottle? Don’t rely on a free blog post. Call an employment lawyer and pay for real legal advice.