38 JULY / AUGUST 2021 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Mandatory Vaccines and Vaccine Incentives Guidance issued by the EEOC Many employers have considered or are considering whether to mandate COVID-19 vaccines or offer incentives (e.g., bonuses, gift cards) to employees to encourage them to get the vaccine. The Equal Employment Opportunity Commission issued guidance last December implying that requiring a vaccine was not unlawful under federal law provided that, among other factors, reasonable accommodations are made for employees with disabilities in accordance with the Americans with Disabilities Act, and for employees who objected to getting the vaccine based on sincerely held religious beliefs in accordance with Title VII of the Civil Rights Act. A number of questions remained following that guidance, including whether employers can offer incentives to get a vaccine. Several employment groups, including the Society for Human Resource Management, requested the EEOC clarify its position on these matters. On May 28, the EEOC finally weighed in and issued updated guidance. The EEOC first clarified that it is not a violation of federal equal employment laws for employers to mandate vaccines, subject to the disability and religious exceptions noted above. An employee who did not get vaccinated because of a disability under the ADA cannot be excluded from the workplace unless the employee poses a “direct threat.” This requires an individualized assessment of the employee’s ability to safely perform the essential functions of their job, considering various factors, including the nature and severity of the potential harm (e.g., type of work environment, ventilation in the work area, amount of interaction the employee has with other employees or customers, number of fully vaccinated employees in the workplace). The assessment must be based on reasonable medical judgment (e.g., community transmission rate at the time of the assessment). The EEOC stated that vaccination documentation is considered confidential and must be kept separate from other employee personnel information, such as other medical information. As for vaccine incentives, the answer depends on whether the employees received a vaccination voluntarily on their own from a third party (e.g., healthcare provider, pharmacy, local health department) or as part of a voluntary vaccine program sponsored or administered by an employer or its agent. In the former situation, employers are only asking for proof of vaccination status, and employees are not required to disclose any protected medical information to receive the incentive. Vaccination status is not protected medical information under the ADA. Therefore, employers may lawfully offer unlimited incentives for employees to provide proof they received a vaccination from a third party. Examples of incentives were not provided; however, some employers offer monetary incentives such as cash bonuses, gift cards, chances to participate in a lottery for cash prizes, or additional paid time off. Although there is no limit on the size of the incentive that may be offered, employers should nevertheless avoid providing large incentives that might cause employees to feel pressured into disclosing protected health information (e.g., the reason why they did not get vaccinated). In the latter situation, in which the employer is administering or sponsoring the vaccination program, an employer may offer an incentive for employees who voluntarily receive a vaccination as long as the incentive (whether it is a reward or a penalty) is not so “substantial as to be coercive” and the prescreening questions
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