Gretchen Harders Quoted in “Employers Can Offer Vaccine Incentives to Workers, EEOC Says”

Bloomberg Daily Labor Report

Gretchen Harders, Member of the Firm in the Employee Benefits practice, in the firm’s New York office, was quoted in the Bloomberg Daily Labor Report, in “Employers Can Offer Vaccine Incentives to Workers, EEOC Says,” by Paige Smith.

Following is an excerpt:

Employers can offer bonuses and other incentives to encourage employees to get the Covid-19 vaccine, the U.S. Equal Employment Opportunity Commission said in updated guidance addressing a legal gray area during the pandemic.

“Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic,” the agency said Friday.

However, employers that administer vaccines to their employees must ensure the incentives aren’t coercive, it said.

“Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information,” the commission said. The agency enforces federal workplace anti-discrimination laws, including the Americans with Disabilities Act.

Employers must also keep worker vaccination information confidential if they choose to obtain it, to comply with federal disability law, the agency said.

The guidance provides clarity to an area fraught with legal questions, though many employers opted to proceed with Covid-19 vaccine incentives without an official green light from the workplace civil rights agency. The EEOC has updated its guidance for workers and employers throughout the Covid-19 pandemic.

The questions revolved around whether the incentives could violate federal anti-discrimination laws if they’re deemed to be involuntary, or if they exclude certain workers who can’t or won’t take the vaccine.

Business groups and Republican lawmakers pressed the EEOC to weigh in on the issue.

The agency also published a fact sheet for workers to inform them of federal laws that can protect against discrimination during the pandemic.

Gretchen Harders, a member of Epstein Becker & Green, P.C., said she would have liked to have seen examples of acceptable incentives in the guidance.

“The guidance could expand by providing a safe harbor or examples of what could be considered coercive, such as a significant cash payment of $1,000,” she said in an email. “Similar to some approaches by states, a lottery for a larger prize might not be coercive but incentivize a larger population.”