January 31, 2022
ARE YOU INTERESTED IN OFFERING VACCINATION INCENTIVES TO YOUR EMPLOYEES?
Vaccination incentives including “vaccine sweepstakes” are gaining popularity with some employers offering cash or other prizes to winning employees randomly selected from a pool of vaccinated entrants. The popularity of such sweepstakes may further increase after the U.S. Supreme Court recently blocked a nationwide OSHA vaccination-or-testing mandate for large employers.
Background
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance stating that employers may offer incentives for employees to get vaccinated. The permissible size of the incentive depends on whether the employer or someone else is administering the vaccine.
Where the employee gets the vaccination voluntarily and without employer involvement, the EEOC does not limit the type or amount of incentives to employees. If, however, the employer or its agents administer the vaccine, the incentive must not be “so substantial as to be coercive” to ensure that employees are not pressured into disclosing their confidential medical information to their employer in violation of the Americans with Disabilities Act (ADA).
Reasonable Accommodations
Some employees may have medical conditions or sincerely held religious beliefs that prevent them from receiving a vaccine. Excluding these accommodated individuals from a vaccine sweepstakes may expose the employer to discrimination claims. To avoid this, employers should make reasonable accommodations for these employees, such as allowing the accommodated employees to enter the prize drawings if they agree to wear a mask and/or submit to regular COVID-19 testing.
Gaming Laws
Most states, including Indiana, have enacted gaming laws that define and govern sweepstakes, lotteries, contests, and other promotions run in their states. Indiana has not yet specifically addressed how these laws apply to employers offering vaccine incentives or how vigorously the State would prosecute any technical violation of the laws.
For more information on COVID-19 vaccine incentives or any other employment matters, please contact the attorneys at Warrick & Boyn, LLP.