With the rate of COVID-19 vaccination slowing, some employers are considering incentives to encourage more employees to get vaccinated. Employers must ensure these types of incentive programs are developed carefully and comply with federal, state, and local laws. Here are the answers to some frequently asked questions about vaccine incentives.

Q: Can I offer an incentive to employees to voluntarily provide documentation that they received a vaccination on their own?

A: Under federal law, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received from a pharmacy, public health department, or other healthcare provider in the community, according to recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC). Employers should also check state and local law to determine if such incentives are permitted.

Q: What if our company is the one administering the vaccine instead of a healthcare provider in the community?

A: According to the EEOC, employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated voluntarily but only if the incentives aren't substantial enough to be considered coercive. Because vaccinations require employees to answer pre-vaccination screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. The EEOC didn't indicate what it considers a very large incentive, so you may want to consult legal counsel when making this determination.

Q: Can I offer an incentive to employees to provide documentation that their family members received the COVID-19 vaccine in the community?

A: According to the EEOC, an employer may offer an incentive to employees to provide documentation from a third party not acting on the employer's behalf, such as a pharmacy or health department, that their family members have been vaccinated. However, if the employer or its agent provides the vaccination, federal law prohibits the employer from offering any incentives to an employee in exchange for their family member's vaccination. State and/or local jurisdictions may have stricter rules.

Q: What types of programs are employers offering to encourage vaccination?

A: Many employers are offering paid leave to receive the vaccine, even if not required to do so under law (note: several states and local jurisdictions do require such paid leave). Some employers are also providing transportation and childcare vouchers or reimbursement to make it easier for employees to make their vaccination appointment. There are also employers that are offering cash, gift cards, and other monetary rewards as an incentive for vaccination.

Q: Our state is running a lottery to award a substantial prize to someone picked at random for getting vaccinated. Can we do something similar and enter employees who show proof of vaccination into a company-sponsored drawing?

A: This type of program could conflict with anti-gambling laws and the EEOC's position on coercive incentives.

Q: To acknowledge employees for participating and spur greater participation in an incentive program, can I post a list of all the employees who have received the reward for getting vaccinated?

A: Under the Americans with Disabilities Act (ADA), information about an employee's COVID-19 vaccination, like all medical information, must be kept confidential. It must also be stored separately from the employee's personnel file. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.

Q: My state recently enacted a law that prohibits employers from discriminating against employees based on their vaccination status. Would offering an incentive only to vaccinated employees violate this law?

A: If your state or local jurisdiction has enacted a law that prohibits discrimination based on vaccination status, offering an incentive only to vaccinated employees could violate the law. Check your state and local law and consult legal counsel to discuss your particular situation.

Q: If an employee says they're unable to get the COVID-19 vaccine, would I have to provide an alternative way for them to earn the incentive?

A: To date, the EEOC hasn't addressed this question specifically. Employers should consult legal counsel to discuss how rules governing wellness programs and requirements for providing reasonable accommodations for disabilities, sincerely held religious beliefs, and pregnancy may impact vaccine incentive programs.

Q: Besides incentives, what other options do I have to promote vaccination?

A: You may provide information to educate employees about COVID-19 vaccines and raise awareness about the benefits of vaccination and link them to resources that can help address common questions and concerns.

Compliance recommendations:

Before implementing an incentive program ensure that you understand and comply with applicable federal, state, and local laws and consult legal counsel as needed.