The EEOC has updated the Technical Assistance Questions and Answers as of May 28, 2021. Under this new guidance, the EEOC confirms the applicability of its wellness regulations under the ADA and GINA regarding vaccine incentives.
The updated guidance confirms that, under the ADA, if the employee receives a vaccine by a third party (i.e., their own health care provider such as a doctor, pharmacy, clinic or other health agency), the employer can offer an incentive of any kind and require proof of vaccination from the employee prior to giving an incentive. However, if the employee receives the vaccine from the employer or its agent, then there are limits on the type of incentive that may be offered. According to K.17 of the guidance, the incentive must not be “so substantial as to be coercive.” This is consistent with the voluntariness requirement provided in the EEOC’s wellness rules under the ADA.
Even though the EEOC explained in its updated guidance under K.17 that a “very large incentive” could make employees feel pressured to disclose protected medical information (by responding to medical pre-screening questions when getting the vaccine from the employer or its agent), the EEOC did not define or give examples for what is considered a “very large incentive.” Thus, employers who plan to provide the vaccine directly or through an agent and offer vaccine incentives that might be considered “very large,” will want to reconsider their approach.
Likewise under GINA, the guidance confirms that an employer can offer an incentive for employees to be vaccinated by the employer or its agent, or by a third party (e.g., their own health care provider), as long as the employer doesn’t acquire genetic information. However, as confirmed under K.20, an employer may not offer a vaccination incentive to an employee’s family member if vaccinated by the employer or its agent. This is because GINA prohibits employers from giving incentives in exchange for genetic information (i.e., family medical history of the employee). Therefore, while employers may offer the opportunity to be vaccinated by the employer or its agent to family members, they may not provide an incentive to family members to be vaccinated unless the family member was vaccinated by an outside third party.
In addition, the guidance confirms under K.4 that information about the employee’s vaccination is indeed confidential medical information under the ADA. Generally, this means the medical information must be kept confidential and stored separately from the employee’s personnel files. It is not, however, protected health information (PHI) under HIPAA’s administrative simplification rules because this information presumably is not created, received, maintained, or transmitted by a covered entity or business associate. In other words, in their capacity as the employer (and not in their capacity as a covered entity), the information is very sensitive and thus considered confidential medical information under the ADA, but would generally not be considered PHI under HIPAA.
There is additional information provided under the EEOC's updated guidance regarding mandatory and voluntary vaccination programs, as well as reasonable accommodations requests. Employers should review the EEOC's guidance prior to implementing any vaccination program.
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