The EEOC issued proposed wellness rules earlier this year that limited incentives for wellness programs to “de minimis” gifts such as coffee mugs or pens. The Biden administration suspended the proposed regulations, however, and it is unclear in the first place whether they would have applied to vaccine incentives.
Offering incentives for vaccines could implicate the Americans with Disabilities Act as well as the Genetic Information Nondiscrimination Act, particularly if an employer’s vaccine policy involves employee health data. The legal landscape on the issue becomes even murkier when the line between “voluntary” and “mandatory” vaccine policies becomes blurred. The EEOC has previously proposed that any wellness program incentive of greater value than a water bottle or modest gift card may cross the line between voluntary and mandatory, violating the ADA's requirement that the programs be voluntary.
The EEOC has yet to offer guidance on vaccine incentives. Sen. Burr and Rep. Foxx, as first reported by Bloomberg, noted that “employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws.”
Outlook: Employer vaccine policies and associated incentive programs will continue to be a pressing issue for employers as vaccines become more available. Clarity on this issue would provide employers with much needed assurance that their vaccine policies fall within the bounds of federal labor and employment laws.
