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When the Equal Employment Opportunity Commission (“EEOC”) initially provided guidance outlining how employers could manage employee vaccination back in December, it remained unclear whether (and to what extent!) employers were permitted to offer their employees incentives to encourage vaccination. On May 28, the EEOC finally released guidance clearing this up: employers may offer vaccination incentives. That guidance is available here beginning at Section K.16.
Incentive Limits. What incentives may be offered depends on how your employee obtains the vaccine.
|Vaccine administered by coworker or employer contracted on-site vaccination||Incentives may not be “so substantial as to be coercive.” A minimal incentive such as a water bottle or a restaurant gift certificate covering a single meal are likely the bounds of permissible incentives.|
|Vaccine obtained on employee’s own from a third party not connected to employer||With proof of vaccination, incentive options are limitless.|
Proof of Vaccination. You are free to ask for proof of vaccination so long as you do not ask follow-up questions likely to reveal employee disabilities. We recommend simply asking to see an employee’s vaccination card. You may copy the card or other documentation provided, but you must maintain that vaccination information confidential as you would any other employee medical information.
Eligibility Matters. Employers should ensure that all employees are eligible for these incentives. Offer alternative means for an employee to earn the same incentive if he or she cannot vaccinate due to a medical condition or a sincerely held religious belief against vaccination. Consider also the extent to which you will or should provide incentives to those employees who became vaccinated even before your incentive program was created.
If your organization is interested in setting up a vaccine incentive program, our employment law experts stand ready to assist.
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At Fahey Schultz Burzych Rhodes PLC, we’ve been helping municipalities, franchised businesses, employers, and more with their legal needs since 2008. We’d love to learn how we can help you, too.