Is it legal to offer employees incentives to get vaccinations?
Generally, yes — but it depends. There are some important caveats that employers need to take into account. First, individual state or local governments may have restrictions on certain incentives or whether they can be provided at all. Employers should check for these restrictions before deciding whether to implement a vaccination incentive program.
Based on federal law, however, incentives can be made available, if they are provided correctly. Notably, the Equal Employment Opportunity Commission (EEOC) specifically advised that employers can mandate vaccines, so long as accommodations are made for individuals with religious beliefs or disabilities that prevent them from receiving the vaccination. A robust Vaccination Policy will address these issues.
If employers are providing the vaccines, the incentives being offered cannot be so substantial that they are coercive. For example, if the incentive is an additional two weeks of pay, employees may feel pressured into disclosing private medical information. Likewise, if the employer requires an employee's medical providers to share confidential health information for the Proof of Vaccination to earn the incentive, it could be a violation of the Americans with Disabilities Act (ADA). However, the EEOC clarified that requesting employees to voluntarily provide Proof of Vaccination administered by a third-party is legal, and does not come with the same restrictions on incentives.
Here are some examples of incentives:
- Monetary bonuses.
- Gifts or gift cards.
- Extra vacation time.
A few actual examples of current incentives:
- One major retailer is providing a $100 cash incentive.
- A small local travel shop is paying employees $75.
- A national chain of stores is paying employees $75.
- One national transit company is paying the equivalent of two hours of straight time pay and allowing employees to schedule vaccinations during their regular work hours.
- An international grocery chain is covering all costs of receiving the vaccination, including two hours of pay for each dose.
Is it legal to offer employees incentives to return to the office?
Yes. Employers can offer incentives to employees to encourage them to return to work at their physical location.
One large real estate company is randomly awarding $10,000 each day to a vaccinated employee who comes back to the office. They are also giving away a vacation to Barbados and flights using the company's private jet as enticements. While these prizes can be problematic due to privacy issues if they are only available to vaccinated employees, employers find they are effective to get employees back to their desks.
Other employers offer solutions to some of the most difficult parts of returning to work, such as offering free child care or improved commuter benefits. These more individualized incentives, including bonuses, increases in pay or benefits, are generally a better solution as employees value these much more than uncertain prizes.
What about employee exemptions and incentive programs?
Some employees may be exempt from getting the COVID-19 vaccination because of health or religious reasons. In general, even if an employer only offers an incentive program rather than mandating vaccination, there should be an exemption process for employees who would not qualify for the incentive.
One course of action may be to provide the same incentives to employees who complete a Vaccine Exemption Form, as excluding individuals due to their religious beliefs or disability will run afoul of federal anti-discrimination laws.
If you have questions or concerns about how to correctly implement an incentive program, talk to an attorney about your specific situation before setting out any policies.
Can face masks or other PPE be an incentive?
Providing masks and personal protective equipment to employees may be more than just an incentive, it might actually be required. Employers can, however, go above and beyond by providing high-quality reusable face coverings for employees that return to the office, while also providing the disposable kind in case someone forgets their reusable one at home.
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) recommends that employers provide workers with face coverings at no cost. Generally, with the shifting news about whether masks are needed, and who needs them, employers should certainly consider following the current CDC recommendations.
Be mindful that state and local regulations may require employers to provide PPE at no cost. Also, if employers require employees to wear PPE, then many state and local regulations require employers to provide it. Just like how employers are required to provide uniforms, tools and other things needed for employees to do the work, if masks are required, they need to be provided. The silver lining here is that having a safe work environment and providing masks and other PPE can help ease employee anxieties over returning to the workplace.
Is social distancing required in the office?
There are no federal laws or regulations that require social distancing. However, state or local governments may require social distancing, even when workers are vaccinated or wearing masks.
Employers should still strongly encourage workers to socially distance themselves whenever and wherever possible. Some local and state requirements may set out how workers, customers, and visitors in an office or workplace should be spaced or interact with one another.
Do you have more questions about offering incentives to employees or other COVID-19 related policies? Visit the Coronavirus Legal Center or reach out to a Rocket Lawyer On Call® attorney to get answers.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
