Vaccines for COVID-19 have been available for months now. Currently, about half of adults in the United States are fully vaccinated and many more than that have had at least one shot.
Yet, in all this time, employers have not received much guidance from the U.S. Equal Employment Opportunity Commission (EEOC) regarding the legal implications of requiring proof of vaccination from employees or incentivizing employees to get vaccinated.
That changed on May 28, when the EEOC updated and expanded its technical assistance related to the COVID-19 pandemic.
Proof of Vaccination
The latest guidance reinforces existing guidance stipulating that employers may require most employees to provide proof of vaccination as long as exceptions are allowed for employees with disabilities and those with sincerely held religious beliefs.
In the new guidance, the EEOC warns employers that, when requiring proof of vaccination, they should ensure compliance with the reasonable accommodation provisions of the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964. The guidance further warns that “other laws, not in [the] EEOC’s jurisdiction, may place additional restrictions on employers.”
The agency also emphasizes that employers need to be mindful that some employees or groups of employees may have a harder time obtaining a COVID-19 vaccination than others. Thus, if a proof of vaccination requirement is in place, those employees could face a more negative impact from an employer mandate.
The other major issue addressed in the new guidance is incentives. The agency does make clear that no existing federal equal employment opportunity (EEO) law prevents or limits an employer from offering employees an incentive to voluntarily provide documentation or other confirmation of receiving a vaccine from a third party. Such parties would include pharmacies, personal health care providers, and public clinics.
The thornier issue comes into play when an employer administers vaccines itself or through a specified agent. In these cases, the employer may still offer employees an incentive to get vaccinated, but that incentive cannot be ‘coercive.’ The EEOC fears that “a very large incentive could make employees feel pressured to disclose protected medical information.” This is because vaccination is typically preceded by completion of a list of screening questions.
Observers have noted that the agency is not clear on what constitutes a coercive incentive. The guidance provides no specific examples of what might tip an incentive from acceptable to coercive. For example, would a cash incentive more likely expose an employer to compliance risk? If so, could a specific dollar limit (akin to a safe harbor) be established?
Although the latest EEOC guidance provides some further clarity, you may want to consult an attorney regarding your organization’s policies regarding proof of vaccination or incentives. To read the full text of the EEOC’s technical assistance on COVID-19 and EEO laws, click here.