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Updated Guidance on Workplace Vaccine Requirements

Updated: Jun 14, 2021

On May 28, 2021, the EEOC (Equal Employment Opportunity Commission) updated its guidance related to COVID-19 vaccines. By way of background, the EEOC is responsible for administering a slew of workplace non-discrimination laws, including: the Americans with Disabilities Act (ADA), Title VII of the Civil Right Act (which prohibits discrimination based on race, color, national origin, religion, or sex), the Age Discrimination in Employment Act (ADEA), and the Genetic Nondiscrimination Act (GINA). These laws have numerous implications for employers on a daily basis and gave rise to many questions during the pandemic.

To assist in answering those questions, the EEOC maintains a webpage specifically related to COVID-19. The most recent round of updates to this page shed light on several issues outlined below specifically related to workplace vaccinations.

  1. An employer may require all employees physically entering the workplace to be vaccinated for COVID-19, subject to certain reasonable accommodation requirements.

An employer has to provide a reasonable accommodation (i.e., an alternative to getting vaccinated) if an employee chooses not to be vaccinated due to a disability or a sincerely health religious belief unless doing so would cause the employer an “undue hardship.” Whether offering such an alternative is considered an undue hardship depends on the specific facts and circumstances, but employers can take factors such as the proportion of the workforce that is vaccinated and the extent of contact with non-employees into account for purposes of this analysis.

  1. Reasonable accommodations can result in non-vaccinated employees being treated differently than vaccinated employees.

Examples of permissible reasonable alternatives can include requiring unvaccinated employees to: (1) wear a face mask, (2) social distance from coworkers and non-employees, (3) work a modified schedule, (4) get periodic tests for COVID-19, (5) be given the opportunity to telework, or (6) accept reassignment. If employers provide these accommodations to certain employees based on disability or religious beliefs, they must also make them available to pregnant employees.

  1. Employers may actively encourage employees and their family members to get vaccinated.

Employers are expressly permitted to provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.

  1. Employee vaccination status is confidential medical information under the ADA.

Employers can require employees to provide documentation of their vaccination status, but this must be treated as confidential medical information under the ADA. The ADA specifically requires that such medical information be kept confidential and that it be stored separately from the employee’s personnel files.

  1. Employees who are fully vaccinated may request accommodations for an underlying disability due to a concern that they face a heightened risk of severe illness from a COVID-19 infection.

If an employer receives such a request, they should process it in accordance with generally applicable ADA standards. This process typically includes consulting with the employee’s health care provider. The guidance suggests that this situation may arise relative to immunocompromised employees for whom the vaccine may not provide the same level of protection as for other vaccinated individuals. In these circumstances, employers must explore reasonable accommodations that can be provided without undue hardship.

  1. Employers may offer incentives to employees who can demonstrate they have been vaccinated.

An employer can provide any incentive they wish in exchange for proof that an employee has been vaccinated. If an employer sponsors their own vaccination program, incentives are still permitted so long as they are not so substantial as to be coercive. Such incentives may also apply to family members of employees who are vaccinated outside of an employment-based setting without violating GINA. Employers may not offer incentives for family members to participate in employer-sponsored vaccination programs.

We will continue to monitor developments and bring any additional information to you as it becomes available.


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