Since the federal government initiated emergency use authorization (EAU) for COVID-19 vaccines, employers have been chopping at the bit for more precise guidance on vaccinations for employees in the workplace. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued that guidance.
Below is a summary of that guidance provided from an EEOC press release on the new guidance:
- Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
- Federal EEO laws do not prevent or limit employers from offering incentives to employees to 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. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
- Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
- Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.
Most public or private employers considering implementing a COVID-19 vaccination policy will have to determine whether a voluntary or mandatory vaccination policy is best for their workplace. In most cases, employers will experience the fewest legal hurdles “encouraging” employees to voluntarily take a vaccine instead of requiring them to do so. Expressing the importance of public health and workplace safety, supplying accurate information, and providing, in some instances, incentives to employees to receive a vaccine, employers can maximize vaccination rates and ensure minimum exposure to liability.
Regardless of a voluntary or mandatory policy, employers should always follow state and federal medical recordkeeping requirements when collecting information and documents regarding an employee’s health, including vaccination status. Employers should consider compiling valuable and accurate information regarding COVID-19 workplace safety and vaccinations. The EEOC guidance provides a list of materials employers can share with employees.
Finally, employers should speak with their legal counsel and human resources department before implementing a voluntary or mandatory vaccination policy. Some state or local laws may require additional procedures for vaccinations, and some employees may require specific needs. Further, the EEOC is unclear about constitutes an employee “incentive” when encouraging employees to get a vaccine from a third-party medical provider or directly from the employer or its agents. By discussing the matter with legal counsel, an employer can determine lawful and reasonable incentives under its internal policies.