Employers May Require or Incentivize Employee COVID-19 Vaccinations

An employee COVID-19 vaccination comes after being compliantly incentivized by their employer | Corporate Synergies
If your organization plans to require or incentivize employee COVID-19 vaccinations, be sure you are compliant with employment and employee benefit laws.

We now have an answer to one of employers’ most pressing questions on employee COVID-19 vaccinations. The short version is yes, employers may require or incentivize employees to get vaccinations. So far, offering incentives, rather than mandates, has proven more popular with employers looking to encourage their employees to get vaccinated. However, as is often the case with compliance, employers must be mindful of how they do it to avoid violating employment and employee benefits laws.

Latest Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on May 28, 2021 that clarifies the types of programs and extent to which employers may require or provide incentives for employees or employees’ family members to receive vaccines.

The EEOC’s updated guidance clarifies that employers may require employees who will be physically entering the workplace to be vaccinated, subject to the reasonable accommodation provisions of Title VII, the ADA and other considerations under federal Equal Employment Opportunity (EEO) laws.

Under these rules, mandatory employee COVID-19 vaccination programs must provide reasonable accommodations for people with disabilities, people with sincerely held religious beliefs, and pregnant employees.

Additionally, the updated guidance clarifies that employers may encourage employees and their family members to receive a vaccination without violating federal EEO laws by:

  • Offering incentives to employees who voluntarily participate in an incentive program and provide documentation or other confirmation that they and/or their family members received a vaccination from a third party;
  • Offering incentives to an employee’s family member to receive the vaccine without offering the employee an incentive, as long as all vaccination information retained by the employer is kept confidential and not provided to managers, supervisors or others who make employment decisions for employees;
  • Offering incentives to encourage employees to receive a vaccine administered by an employer or its agent, so long as the incentive is not “so substantial as to be coercive.”

Notably, while the EEOC didn’t say that incentives offered by employers to encourage vaccination must be “de minimis,” meaning nominal, like a pencil or water bottle (as some had expected, based on EEOC wellness incentive rules issued in January, 2021, that are now under review by the Biden administration), they did say that incentives can’t be so substantial as to be considered coercive or too good to pass up. Unfortunately, the updated guidance does not give a specific dollar limit on such incentives.1


The approach of many employers has changed in recent months. Initially, when the COVID-19 vaccines first became available in December 2020, employers worried about whether they should offer incentives to employees to get the COVID-19 vaccine. Under existing employee benefits laws, employer-sponsored benefit programs that provide benefits in return for an employee receiving medical care or achieving a health-related standard, could likely be considered to be both “group health plans” and “wellness plans,” particularly where they occur on the employer’s premises and through an employer-sponsored benefit plan. At that time, such rules would require that any such vaccine incentive program have a plan document, have COBRA continuation coverage offered for them, and that any incentives would need to be “de minimis.”

Since then, however, the law and guidance has changed considerably. Signed by President Biden in March 2021, the American Rescue Plan Act expressly allows employers to offer paid leave for COVID-19 vaccination and recovery, and employers can get a tax refund for voluntarily offering that paid leave. More recently, White House and government officials have encouraged employers to offer rewards and incentives for employee COVID-19 vaccinations.

Incentive Recommendations

If your organization plans to incentivize employee COVID-19 vaccinations, ensure those financial incentives are not too valuable, and it’s probably best not to offer the financial incentives through an employer-sponsored group health plan or wellness plan if you don’t want to worry about complying with rules applicable to those plans. This especially applies if you’re encouraging vaccination by bringing it on-site. In fact, if you’re bringing it on-site and not offering it through a third-party provider, it’s probably best to not offer a financial incentive at all.

Make sure that reasonable accommodation is offered for pregnant employees, and for individuals with disabilities and sincerely held religious beliefs, such as an alternative way for them to get the incentive without getting vaccinated.

Keep it simple when it comes to asking employees about vaccination—don’t ask questions about family medical history, and don’t ask “why didn’t you get vaccinated” in any kind of survey or questionnaire related to the incentives.

Finally, be sure to consult your benefits broker and benefits compliance team for specific guidance on any employee COVID-19 vaccination incentive or requirement.

This information is not intended as a substitute for legal advice. Please contact your attorney for advice about any legal issues.

1 U.S. Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”

Dan Kuperstein, Senior Vice President of Compliance, is an attorney with experience in a broad array of sophisticated employee benefits and labor and employment matters, including ERISA, the Affordable Care Act, COBRA, HIPAA and GINA compliance. His experience includes representation of both public and private companies and health and pension plans. Dan is a respected thought leader on Healthcare Reform and has published articles on the Affordable Care Act and other laws and regulations.


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