Incentivizing Employee Vaccinations: U.S. Businesses Seek Legal Guidance

More than 40 U.S. business groups, including the National Association of Manufacturers, National Restaurant Association, American Hotel and Lodging Association, and the U.S. Chamber of Commerce, requested on February 1 that the U.S. Equal Employment Opportunity Commission (EEOC) “quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans With Disabilities Act [ADA] and other laws enforced by the EEOC.” In a letter to the EEOC’s Chair, the groups said that they “want to help facilitate and expedite the vaccination process.” They urged the federal agency to “define what qualifies as a permissible incentive as broadly as possible.”

The signatories to the letter trumpeted the important role that employer-provided incentives can play in assisting federal and state governments in distributing COVID-19 vaccines expeditiously and efficiently. They asserted that “[l]egal uncertainty about providing such incentives, however, has many employers concerned over liability and has made them hesitant to act.”

Some employers have begun offering incentives to employees who get vaccinated. Aldi, for example, is reportedly offering to cover workers’ vaccine-related expenses and up to four hours of pay. Ryder Systems has announced that it intends to offer up to six hours of paid time off for employees to go get vaccinated. But, as acknowledged in the business groups’ letter, certain federal anti-discrimination laws administered and enforced by the EEOC, such as the ADA, could be read to limit the incentives that companies can offer. As also noted in the letter, incentives offered by employers to encourage participation in wellness programs “have been closely scrutinized over the years and are the subject of recent regulations.” Indeed, when it most recently provided guidance on the subject of wellness programs, the types of incentives that the EEOC suggested could be offered for participation in such programs were a gift card of “modest value,” or a water bottle.

As evidenced by the breadth of business groups who signed on to the February 1 letter, many companies are eager to encourage employees to get vaccinated, thereby hastening a large-scale return to safe workplaces. The business groups hope that the EEOC will issue guidance making clear that more substantial incentives are in order as the nation seeks to emerge from the pandemic with its economy back in high gear.