CLIENT ALERT: EEOC Issues Updated Guidance on Mandatory Vaccine Policies

Recognizing the challenges employers are facing as reluctant employees are preparing to return to the workplace, the U.S. Equal Employment Opportunity Commission (“EEOC”) has expanded its Technical Assistance Questions and Answers to provide additional guidance on mandatory COVID-19 vaccinations in the workplace. The updates address how employers can offer vaccine incentives and impose mandatory vaccine policies consistent with federal equal employment opportunity (“EEO”) laws.

Specifically, the EEOC has confirmed that employers can take several steps to encourage or require their employees to get vaccinated without offending federal EEO laws. Employers must also confirm, however, that any proposed policy does not violate state or local law.

Mandatory Vaccine Policies

Employers may require all employees who physically enter the workplace to be vaccinated for COVID-19, so long as the policy complies with the Americans with Disabilities Act (“ADA”) and Title VII. Further, the EEOC confirmed that employers may require employees to provide proof of vaccination, such as a copy of their vaccination card, which then must be maintained separately from the employee’s non-medical personnel files, as it is considered confidential medical information under the ADA.

To comply with the ADA and Title VII, employers must provide reasonable accommodations for employees with medical or religious reasons why they cannot receive the COVID-19 vaccine, unless the accommodation would pose an undue hardship on the employer’s business. This analysis is fact intensive and requires that those reviewing accommodation requests be well-trained in the applicable standards under the ADA and Title VII. Potential accommodations include allowing the employee to forgo vaccination in favor of an alternative prevention requirement, such as wearing a face mask, social distancing, shift modification, periodic COVID-19 testing, telework, or reassignment.

Pregnant employees also may be entitled to an exemption from a mandatory vaccine policy and related job modifications (such as telework, modified schedules or assignments, or leave), if such modifications are provided for other employees similar in their ability or inability to work.

Finally, as with any policy, a mandatory vaccination policy must be implemented in a manner that treats employees the same regardless of any protected status, such as sex, race, or disability. The EEOC cautions that some employees may face greater barriers to COVID-19 vaccinations, which inadvertently could cause a vaccine mandate to disparately impact employees affiliated with a protected group.

Voluntary Vaccine Policies

Employers may offer incentives to employees who get vaccinated voluntarily, either in the community or through an employer-sponsored vaccination clinic. Incentives can be in the form of rewards, penalties, or a combination of the two. If an employer requires proof of vaccination to qualify for the incentive, then the ADA requires that the information be maintained confidentially.

If an employer administers vaccines to employees (including through a third party), the incentive for employees to participate must not be “coercive.” Because individuals being vaccinated must respond to screening questions that could implicate information about a disability, a coercive incentive could cause employees to feel compelled to respond to disability-related inquiries in violation of the ADA. Unfortunately, the EEOC did not provide any examples of what types of incentives might be considered coercive, thus leaving employers in a vulnerable position, as what one employee may view as coercive, another employee may view as reasonable. However, paid time off or a modest gift card likely would be viewed as reasonable incentives.

Employers that host vaccination clinics can offer to provide vaccines to employees’ family members as well. Employers may not, however, provide an incentive to an employee for their family members’ vaccinations. Doing so would constitute an incentive for providing genetic information (i.e., the employee’s family medical history) in violation of the Genetic Information Nondiscrimination Act (“GINA”).

Employee Education

Employers may educate employees and their families on the benefits of vaccination and how to get a COVID-19 vaccine. The EEOC’s latest guidance includes several resources available online and via text message or telephone.

Conclusion

Although the EEOC has officially blessed mandatory vaccine policies as a matter of equal employment opportunity, employers should be mindful that mandatory vaccine policies are challenging to administer, given accommodation requirements, and they can disrupt operations by negatively impacting employee morale. On the other hand, employers may view such policies as essential to protecting the health and safety of employees and customers. The bottom line is that employers should carefully consider all pros and cons before implementing a mandatory vaccine policy.

The EEOC’s complete Technical Assistance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, addresses many common compliance questions.

If you have questions about the updated Technical Assistance document or would like to consider whether a mandatory vaccine policy is right for your workplace, please contact the Labor and Employment team at Potter Anderson (Jennifer Gimler Brady, Kathleen Furey McDonough, or Jennifer Penberthy Buckley). We are available to assist with all facets of policy design and implementation.

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