Recent guidance issued by the U.S. Equal Employment Opportunity Commission (the “EEOC”) addresses many common employment issues regarding COVID-19 vaccinations, including the applicability of certain federal laws such as the Americans with Disabilities Act (the “ADA”), the Genetic Information Nondiscrimination Act, and Title VII of the of the Civil Rights Act (“Title VII”).
In accordance with this EEOC guidance, an employer may require employees who are physically entering the workplace to be vaccinated for COVID-19, subject to certain “reasonable accommodations” under the ADA and Title VII for employees who are unable to get vaccinated due to a covered disability, pregnancy, or sincerely held religious belief, practice, or observance. The guidance provides a list of examples of reasonable accommodations, such as requiring the use of face masks, social distancing, working modified shifts, periodic testing for COVID-19, and giving employees the opportunity to telework or accept a reassignment.
In addition, an employer may offer incentives to employees to voluntarily provide confirmation they received COVID-19 vaccinations from a third party, such as a pharmacy or personal doctor. However, if an employer offers incentives to employees for voluntarily receiving a vaccination that is administered by the employer (or its agent), the incentive must not be so substantial as to be coercive. There are additional considerations if the employer’s program relates to the employee’s family members. Any documentation confirming that an employee has been vaccinated for COVID-19 is considered medical information and must be kept confidential.
Employers should consider the legal implications of any employment policy related to vaccination requirements or incentives.
The EEOC’s guidance, which is included in its Technical Assistance Questions and Answers, is available here.