People across the country understand just how important mass COVID-19 vaccinations efforts are to getting life and the economy back to normal. Many employers, in particular, are now seeking to do what they can to encourage their employees and their families to get vaccinated. However, the U.S. Equal Employment Opportunity Commission (the EEOC) has never before been tasked with enforcing the Americans with Disabilities Act (the ADA) during a global pandemic. Many questions exist about what employers can and cannot do under the law in these special circumstances.
That is why, on February 1, 2021, the U.S. Chamber of Commerce and over 40 business groups jointly wrote to the EEOC seeking official guidance clarifying the extent to which employers may offer their employees incentives to vaccinate without running afoul of the ADA and other laws enforced by the EEOC. Their letter acknowledged that legal uncertainty about providing vaccination incentives “has many employers concerned over liability and has made them hesitant to act.”
To this point, the letter recognized “that wellness incentives have been closely scrutinized over the years and are the subject of recent regulations.” This reference to the regulation of wellness incentives is likely a nod to new rules proposed just last month that would limit permissible wellness incentives to small awards like “a water bottle or gift card of modest value.” The letter urged that “the paramount needs of the current crisis can be distinguished from wellness programs.”
In addition, to help ensure that any guidance issued by the EEOC “is as effective and efficient as possible,” the letter encouraged “the EEOC to define what qualifies as a permissible incentive as broadly as possible.”
Stevens & Lee will monitor EEOC developments closely and report about any guidance issued by the EEOC and other government agencies regarding COVID-19 vaccinations.