Last Friday, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance clarifying that employers can require COVID-19 vaccinations and offer incentives to vaccinated employees. This long-awaited guidance helps employers navigate vaccine-related legal issues, offering the EEOC’s perspective on how it will view these issues under applicable federal laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
Here's what you need to know:
The new guidance confirms that an employer may require all of its employees physically entering the workplace to be vaccinated for COVID-19. However, employers must still comply with their reasonable accommodation obligations under the ADA and Title VII for employees seeking an exemption from a mandatory vaccination program.
As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving COVID-19 vaccines, some employees may be more likely to be negatively impacted by a vaccination requirement.
Employers mandating vaccinations for their workforce may be required to provide reasonable accommodations to some employees, exempting them from the policy either because of a disability or a sincerely held religious belief unless doing so would pose an undue hardship on the operation of the employer’s business or create a direct threat to the health of others. EEOC suggests that reasonable accommodations could include masking, working at a social distance from coworkers or non-employees, working modified shifts, getting periodic tests for COVID-19, teleworking, or reassigning the employee.
Many employers have chosen to incentivize employees to receive vaccines rather than require them to do so. However, this has led to uncertainties regarding how much of an incentive may be offered and what proof employers may require employees to provide for an incentive.
The EEOC’s new guidance clarifies that employers who are administering vaccines directly to their employees may offer vaccine incentives as long as the incentives are not coercive. Because an entity administering vaccines must ask certain disability-related screening questions, there is a concern that very large incentives could make employees feel pressured to disclose protected medical information.
However, employers who provide incentives to employees for showing proof of vaccination by a third party, but who do not administer the vaccines themselves, may offer larger incentives because they are not receiving any disability-related information from their employees. Employers offering incentives may require employees to provide proof of vaccination by a third party, either by providing documentation or certifying that they have been vaccinated.
In all cases, employers must be careful to keep vaccination information confidential, including ensuring vaccination information is kept separate from employees’ general personnel files.
EEOC also confirmed that employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. To help, Health Action Alliance is introducing a new educational video series you can share with your employees here.
Employers can also offer resources to make it easier for employees to get vaccinated, including internet access and language support for scheduling vaccine appointments, and transportation support to get to and from vaccine sites.
State & Local Laws
Employers should keep in mind that the EEOC’s guidance only covers federal EEO laws and that some state and local laws may place greater restrictions on an employer’s ability to mandate vaccinations in the workplace or provide vaccine incentives.
As a reminder, any employer considering vaccine mandates or incentives should consult legal counsel before implementing such policies. California DFEH guidance
The Health Action Alliance is a joint initiative of the Ad Council, the Business Roundtable, the CDC Foundation, the de Beaumont Foundation, and the Robert Wood Johnson Foundation—in partnership with Meteorite. Together, we work to strengthen and accelerate the business community’s response to COVID-19, advance health equity and help rebuild public health. Learn more at healthaction.org.