Last week, the Equal Employment Opportunity Commission (EEOC) updated and expanded their technical assistance Q&A addressing employee rights and employer obligations under federal equal opportunity laws. Specifically, the updated guidance provides clarification for employers with questions regarding COVID-19 vaccination programs.

While the technical assistance includes some helpful information, it changes little with respect to employment law and wellness program considerations. This results in two major questions remaining unanswered:

  1. Whether some vaccine incentive programs would constitute a health-contingent wellness program under federal law; and
  2. Whether some vaccine incentive programs create a group health plan as defined under ERISA, resulting in additional compliance considerations.

Employers contemplating a vaccine incentive program will need to consider the possible impact HIPAA, ERISA, and other employee benefits laws may have on their programs, as these laws are not covered in the EEOC guidance.

Included below are several key points related to vaccine incentive programs highlighted in the guidance:

Employer Incentives

  • Employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they have received a vaccination on their own from a third-party provider (e.g., a pharmacy, public health department, or other health care provider) that is not their employer or an agent of their employer. The guidance does not place a limit on the incentive amounts under these circumstances. (See K.16)
  • For employers administering the vaccination themselves or through an agent, an incentive (or penalty) is allowed so long as the amount is “not so substantial as to be coercive.” The guidance does not define what constitutes a coercive amount but states “a very large incentive could make employees feel pressured to disclose protected medical information” and is thus prohibited. (See K.17)
  • Employers may not offer an incentive to an employee in return for the employee’s family member getting vaccinated by the employer or their agent (See K.20)

Reasonable Accommodation

  • Employers must act in accordance with applicable ADA standards with respect to employees asking for reasonable accommodations due to an underlying disability. This applies to employees who are both fully vaccinated and who are not. (See K.11)
  • Under Title VII, employers must provide a reasonable accommodation to employees whose sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine unless the accommodation would pose an undue hardship on the employer. This would apply to voluntary programs under which the employer provides an incentive. (See K.12)
  • The guidance includes examples of possible reasonable accommodations employers may have to provide employees who do not get vaccinated due to religious beliefs, a disability, or pregnancy:
  • “as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.” (See K. 2)

Confidentiality of Vaccination Status

  • Information about an employee’s COVID-19 vaccination status is considered medical information under the ADA and must be kept confidential and stored separately from the employee’s personnel files. (See K.4)

Given the remaining questions and legal complexity, employers are encouraged to work with legal counsel specializing in employment and labor laws to determine what course of action is best for their organization.

If you have any questions, please be sure to reach out to your Hays representative.


Please be advised that any and all information, comments, analysis, and/or recommendations set forth above relative to the possible impact of COVID-19 on potential insurance coverage or other policy implications are intended solely for informational purposes and should not be relied upon as legal or medical advice. As an insurance broker, we have no authority to make coverage decisions as that ability rests solely with the issuing carrier. Therefore, all claims should be submitted to the carrier for evaluation. The positions expressed herein are opinions only and are not to be construed as any form of guarantee or warranty. Finally, given the extremely dynamic and rapidly evolving COVID-19 situation, comments above do not take into account any applicable pending or future legislation introduced with the intent to override, alter or amend current policy language.


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