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Ask the Attorneys

July 19, 2021

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Q: My employer is now offering money and extra vacation time to employees that get vaccinated and provide proof. Is this legal? What if I was vaccinated before these reward incentives were put into place?

A: Many different employers across New York State have been, and will most likely continue to, offer its employees different incentives to get and provide proof of vaccination when returning to work. Apart from what has seemed to be the standard of paid time off just to receive the vaccination, things like extra vacation time, money, gift cards, and store credit are all valid rewards to incentivize employees to get vaccinated. However, there is still a gray area when it comes to how much employers can offer, as when the incentives become too large or coercive, an employee may feel pressured into getting a vaccine they may not be comfortable receiving.

As far as the legality of rewards and incentives, in recent guidance posted by the Equal Employment Opportunity Commission (EEOC), they outlined an employer’s abilities to offer incentives to its employees that “voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.” The EEOC, however, did not define what would and would not be considered “coercive”; just providing a warning to employers that should they choose to reward employees for the collection of this information, they must keep it confidential as per the ADA.

Employers are not prohibited from asking employees about their vaccination status, as the ADA only requires employers to take caution when disclosing employee medical information. Many people often assume that they are covered for vaccine confidentiality by the Health Insurance Portability and Accountability Act (HIPAA). HIPAA only covers you from medical and insurance agencies disclosing private medical information without your permission, not your employer.

As far as retroactively receiving any incentive rewards, it varies on a case by case basis. Some employers may choose to give these benefits to previously vaccinated employees, while other may not. Furthermore, any employee that is looking to get vaccinated and partake in any rewards should check when the rewards are valid to avoid any confusion. Overall, these incentives are to encourage and reward employees who choose to take the vaccine, and any employee looking to reap the benefits should check all the details with their employer.

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