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What the EEOC Says about Requiring Vaccines at Work

July 21, 2021
Can you mandate employees to show proof? What are the HR rules around incentives for getting the shot?

For many months, manufacturers have been navigating issues related to the COVID-19 vaccine and its impact on the workplace. This includes implementation of vaccination programs that require or encourage vaccination of frontline workers, who remain at a higher risk of COVID-19 exposure and infection.  

Manufacturers have been tasked with remaining up to date on relevant legal obligations and practical considerations surrounding vaccination policies, incentive programs, reasonable accommodations, employee relations and communications, among other issues. In late May, the Equal Employment Opportunity Commission (EEOC) updated its technical-assistance guidance for the first time since December 16, 2020, clarifying several important topics related to workplace vaccination programs.    

Mandatory Vaccination Policies

In the guidance, the EEOC reiterates that employers may generally mandate the COVID-19 vaccine, assuming that appropriate reasonable accommodations are provided for employees with disabilities or sincerely held religious beliefs. That being said, the guidance reminds employers that there might be legal risks associated with mandatory vaccine policies, as the COVID-19 vaccine thus far only has been authorized by the Food and Drug Administration (FDA) pursuant to an Emergency Use Authorization (EUA), rather than full FDA approval.  The relevant legal risks are further illustrated by a number of lawsuits currently being filed across the country against employers that mandated vaccination. 

Reasonable Accommodations

Under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), covered employers must generally provide reasonable accommodations for employees who are unable to be vaccinated due to a disability (under the ADA) or a sincerely held religious belief (under Title VII), unless providing an accommodation would pose an undue hardship, meaning it would cause a significant difficulty or expense. According to the EEOC, this assessment should consider the “proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19” and the “extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown.”  Potential reasonable accommodations may include mask-wearing, social distancing, modified shifts, periodic COVID-19 testing, teleworking, or reassignment.  

Employee Medical Information

The EEOC confirmed that employers lawfully may require employees to present proof of vaccination, but that such information is considered confidential medical information that must be safeguarded and maintained separate from employees’ personnel files.  However, employers should take note that relevant state laws should be consulted before requiring proof of COVID-19 vaccination from employees, as several states have implemented strict bans on requesting such proof via “vaccine passports” or other documentation, which may impact certain employers. Additionally, the EEOC’s guidance calls attention to several issues that arise when an employer is administering the vaccine either itself, such as onsite, or through a third party it engages directly for this purpose.  

Potential for Disparate Impact of Vaccination Policies

The new guidance also raises the issue of disparate impact; it states that because individuals or groups may lack access to the COVID-19 vaccine, a mandatory vaccination program may have a discriminatory impact on employees based on protected characteristics such as race, color, religion, sex, age, and national origin.  The EEOC also reminds employers that it is unlawful to impose a vaccination requirement that discriminates or otherwise treats employees differently based on a protected characteristic unless there is a legitimate non-discriminatory reason for such requirement.

Vaccination Incentive Programs

The EEOC’s guidance also clarifies employer obligations surrounding voluntary vaccination incentive programs (i.e., providing something of value in exchange for an employee providing proof of vaccination, such as a paid day off, gift card, water bottle, etc.).  The guidance regarding the types of incentives that may be offered vary, depending on who administers the vaccination. 

Where the employer allows employees to voluntarily provide proof of vaccination received from a third party (such as a pharmacy or a health care provider), incentives are permitted for the employee and/or the employee’s family member if that family member also received a vaccination from a third party.  If, however, the employer or its agent is sponsoring a vaccination program, the employer may offer an incentive to employees only who voluntarily receive the vaccination through such program, provided the incentive is not “so substantial as to be coercive.”   

This is largely due to the fact that employees would be required to answer a pre-vaccination screening questionnaire, and a substantial incentive could cause employees to feel compelled to disclose other protected medical information.  Unfortunately, the current EEOC guidance does not provide any guidance or examples as to the types of incentives that would be considered “so substantial as to be coercive;” therefore, employers considering offering incentives may wish to consult with competent legal counsel.  Lastly, employers will be best served to carefully craft pre-screening questions to avoid inadvertently receiving any genetic information from the employee.  Employers are not permitted to offer an incentive to an employee’s family member to be vaccinated by the employer, as this may result in the employer obtaining family medical history of the employee.    

As manufacturers continue to review, implement, and administer workplace vaccination programs, it is important to consider these rules regarding mandatory vaccination policies, incentive programs, confidentiality, reasonable accommodations, and disparate treatment or disparate impact, among other considerations.

Abby Warren is a partner and Alisha Sullivan and Emily Zaklukiewicz are associates in the Labor and Employment group at Robinson+Cole

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