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Stephanie K. Rawitt of Clark Hill. Courtesy Photo Stephanie K. Rawitt of Clark Hill. Courtesy Photo

Many businesses want to offer employee incentives but are hesitant to do so as there is legal uncertainty. Employer groups are already seeking clarity from the Equal Employment Opportunity Commission (EEOC) concerning COVID-19 vaccine incentive programs. In a letter dated Feb. 1, 2021, SHRM and 41 other business groups, including but not limited to, the U.S. Chamber of Commerce, the National Restaurant Association and the National Retail Federation, asked the EEOC for additional guidance concerning “the extent to which employers may offer employees incentive to vaccinate without running afoul of the Americans with Disabilities Act (ADA) and other laws enforced by the EEOC.” The business groups encouraged the EEOC “to define what qualifies as a permissible incentive as broadly as possible.”

The EEOC, in a recent guidance, stated that employers may require employees to get vaccinated, as long as they address accommodation issues. Many employers are hesitant, however, to mandate the vaccine and are, instead, looking for alternatives to encourage employees to get the vaccine when they are able to do so. Some employers may consider offering an incentive, such as a bonus, gift card or other reward to employees who provide proof that they got the vaccine. Generally, providing an incentive is a legal method for employers to encourage vaccination but the incentive itself should be carefully evaluated to make sure that it is not unlawful. If the value of the incentive is too great, there could be a potential claim that the vaccination was not really voluntary.

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