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New EEOC guidance on employer COVID-19 vaccine policies, incentives

By Anu Gogna and Benjamin Lupin | June 10, 2021

Generally, employers may require onsite employees to be vaccinated for COVID-19 if ADA and other equal employment opportunity requirements are met.
Health and Benefits|Inclusion-and-Diversity
Risque de pandémie

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its technical assistance guidance on the COVID-19 pandemic, answering questions on how federal equal employment opportunity (EEO) laws apply to employer vaccine programs, incentives and other issues related to employees returning to the workplace.

Key updates to the EEOC guidance

  • Employers may require COVID-19 vaccines of their employees as long as they provide reasonable accommodations as required under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.
  • Employers who are administering COVID-19 vaccinations to their employees (either at the workplace or through a contracted vendor) may provide incentives to employees, but those incentives should not be so substantial as to be “coercive.”
  • Employers may offer incentives to employees for voluntarily providing documentation of COVID-19 vaccination, but the collection of such information is subject to the ADA’s confidentiality requirements.

Mandatory vaccination programs

An employer may require all employees physically entering the workplace to be vaccinated for COVID-19, so long as the employer complies with the reasonable accommodation provisions of the ADA, Title VII and other EEO considerations.

However, if an employee cannot obtain the vaccine because of a disability, the employer must assess whether the individual would pose a “direct threat” to his or her own health or safety or that of others in the workplace. If so, the employer must provide a reasonable accommodation, absent undue hardship, to reduce or eliminate that threat, including requiring the employee to wear a mask or work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible or reassigning the employee to a vacant position in a different workspace. 

Similarly, if an employee’s sincerely held religious belief, practice or observance prevents him or her from getting a COVID-19 vaccine or the employee objects to taking the vaccine due to pregnancy, then the employer must provide a reasonable accommodation unless it would pose an undue hardship.

Please note that while mandatory vaccinations do not violate federal EEO laws, an employer must also consider any applicable state and local laws that might be inconsistent with or more restrictive than the EEOC guidance. 

Finally, the EEOC recommends as a “best practice” that an employer introducing a mandatory COVID-19 vaccination policy notify all employees that requests for reasonable accommodation based on disability, religious objection or pregnancy will be considered, on an individualized basis. Employees are responsible for notifying their employer of the need for an exemption. The EEOC also recommends that employers inform managers of how to recognize a request for an accommodation and to whom they should refer such a request.

Employer incentives for voluntary COVID-19 vaccinations and the ADA

Employers may offer incentives to employees to voluntarily provide proof of vaccination obtained in the community, such as a pharmacy, personal health care provider or public clinic. Vaccination information must be kept confidential pursuant to the ADA.

Employers that are administering vaccines to their employees (either at the workplace or through a contracted vendor) may offer incentives for employees to be vaccinated, as long as the incentives are not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, the EEOC is concerned that a very large incentive could make employees feel pressured to disclose protected medical information. The guidance did not explain what is meant by “so substantial as to be coercive,” so any incentive amount should be discussed with legal counsel.

Employer incentives for voluntary COVID-19 vaccinations and GINA

Under the Genetic Information Nondiscrimination Act (GINA), an employer may incentivize employees to provide proof that they or their family members have been vaccinated through a third party, such as a pharmacy or health department.

However, an employer or contracted vendor providing a vaccination to a family member may not offer an employee an incentive in exchange. This protects against the employer receiving genetic information in the form of the employee’s family medical history, which would be collected from the family member when answering pre-vaccination medical screening questions.

Employers may not require employees to have their family members get vaccinated nor penalize them if their family members decide not to get vaccinated. Employers must also ensure that all medical information obtained from family members during screening is only used for the purpose of providing the vaccination; kept confidential; and not provided to any managers, supervisors or others who make employment decisions.

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