The Equal Employment Opportunity Commission’s May 28 updated and expanded technical guidance regarding the COVID-19 pandemic allows employers to offer incentives to employees to receive a COVID-19 vaccine as long as the incentive is not coercive. 

But the document leaves employers wondering just what constitutes a coercive incentive, according to labor law attorneys Pierce Blue, Alana Genderson and Daniel Kadish of Morgan Lewis & Bockius LLP.

As a result, employers affected by these incentive provisions now are struggling to determine what the law allows and what it requires. For example, if an employer provides a $100 incentive to those who submit proof of vaccination, it is unclear whether the employer must provide the same incentive to those who cannot get vaccinated because of disability, pregnancy or a strongly held religious belief.

If so, then employers need to know what an unvaccinated employee must do to earn that incentive. Perhaps those employees, as with other unvaccinated employees, are not entitled to the incentive at all, but the guidance is unclear, according to Blue, Genderson and Kadish.

The EEOC’s guidance that employers must keep information about an employee’s COVID-19 vaccination confidential raises questions regarding how that information can be used.

“We believe the most straightforward reading is to limit that requirement to formal documentation related to vaccination,” the attorneys wrote last week in an opinion piece published by Law360. “While portions of the updated guidance seem to define the confidentiality requirement broadly, the most specific question related to the issue … says only that ‘documentation or other confirmation of vaccination provided by the employee’ qualifies as medical information.”

According to the authors, “This interpretation also reconciles the updated EEOC guidance with earlier Centers for Disease Control and Prevention guidance on safety measures for vaccinated persons, which seems to allow implementation of different policies based on vaccination status. Absent further clarification, however, employers will continue to have questions in this area.”

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