Come on, EEOC!!! Can employers incentivize COVID-19 shots? We need to know! (ASAP!)

On Monday, several business groups, including the U.S. Chamber of Commerce and The Society for Human Resource Management, wrote this letter to Charlotte Burrows, the new Chair of the U.S. Equal Employment Opportunity Commission.

There’s just one thing they’ve got to know!

Are you gonna go my way?

To what extent may employers offer employees incentives to get the COVID-19 vaccine without violating the Americans With Disabilities Act and other laws enforced by the EEOC?

Here’s the issue with incentives.

Now, you may be thinking to yourself, “COVID-19 vaccines are key to public health and galvanizing the economy; why can’t a give an employee a small bonus or an extra few PTO days in exchange for proof that s/he got vaccinated?”

Shame on you!

If you’re asking yourself those questions, then you haven’t been reading this blog lately.

In January, 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. A de minimis incentive is like a water bottle or a low-value gift card.

Is incentivizing vaccinations part of a wellness program?

While the EEOC guidance didn’t reference COVID-19 vaccinations specifically, it got many people thinking about the ramifications of incentivizing employees to get vaccinated.

The concern here isn’t giving someone a few hours of PTO to get vaccinated (see. e.g., Dollar General). At least, I don’t think it is. Plus, there shouldn’t be an issue either with providing vaccinated employees a paid day off to recover from any side effects.

Rather, the concern is where an employer provides something of real value to entice an employee to get vaccinated; e.g., a small bonus or a few PTO days or a trip to Bali.

Because a water bottle isn’t going to motivate sh*t.

(To be clear, that’s not “shot.”)

I’ve got to think that suing employers for facilitating COVID-19 vaccinations wouldn’t be a good look for the EEOC. Then again, administrative agencies have begun bearing fangs recently.

So come on, EEOC! Please help us out! We need to know!