In an April 15, 2021 letter, the EEOC addressed a request for guidance on employer-provided incentives aimed at encouraging employees to receive the COVID-19 vaccine. The agency indicated, at the time, that they were updating their technical assistance guide to address the extent to which employers may offer employee incentives to vaccinate. Specifically, the guidance is intended to ensure vaccine incentives do not conflict with the Americans with Disabilities Act and other laws enforced by the EEOC.

While we don’t have the EEOC updates yet, OSHA has released guidance implicating employer vaccine incentives. In an April 20 update to its COVID-19 FAQs, OSHA told us that adverse reactions to the vaccine are generally reportable as work-related illness for purposes of the OSHA 300 log only when the employer has mandated vaccination. Unfortunately, “mandated” is not a clear or objective standard. Specifically, the guidance provides:

In general, an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

No. Although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

Note that for this discretion to apply, the vaccine must be truly voluntary. For example, an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice. If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely “recommended” and employers should consult the above FAQ regarding COVID-19 vaccines that are a condition of employment…

In these new FAQs, OSHA has apparently taken the position that an employer’s vaccine incentive may change the character of its voluntary policy. In doing so, OSHA has created more questions than it has answered: Is the failure to receive some incentive a “repercussion”? Is it “adverse action?” Ultimately, what is a large enough incentive to transform a voluntary program into a mandatory program under OSHA? Because OSHA has not provided any additional guidance, employers are encouraged to proceed cautiously with COVID-19 vaccination incentives.

Practical Takeaways

Employers will want to keep an eye out for the EEOC promised guidance. While this will not be technically applicable to questions under OSHA, it may be helpful to employers as they weigh the risks of vaccine incentive programs generally. Given the EEOC’s somewhat recent statements concerning voluntary wellness programs (now withdrawn), which limited employer incentives to water bottles or gift cards of modest value, we are not expecting that the EEOC will endorse any significant incentive.

For now, employers will want to keep in mind that the larger the offered incentive, the greater the possibility that a voluntary vaccination policy will be interpreted as something other than voluntary. Additionally, the larger the incentive, the more likely an employee denied the incentive will file a charge and/or call attention to OSHA reporting, ADA discrimination/accommodation practices, Title VII discrimination/accommodation practices, etc.