EEOC’s Latest Guidance on Employer Vaccination Policies

As COVID-19 variants cause an upward trend in the pandemic, public health officials in some circles have renewed calls for businesses to require vaccinations for employees returning to the workplace. While questions remain about how such requirements would be enforced — some of which we addressed last fall the latest guidance from the Equal Employment Opportunity Commission (EEOC) provides a framework on how employees can tackle the issues.

Here are some key takeaways for employers from the EEOC’s latest guidance.

Mandating vaccines is legal.

The EEOC reiterates that businesses have a right to require on-site workers to be vaccinated, provided that employers provide reasonable accommodations to employees with underlying disabilities or sincerely held religious beliefs that prohibit vaccinations. A list of possible accommodations, such as requiring face masks, providing modified hours, requiring periodic COVID-19 testing, or providing the opportunity to work remotely, are provided by the EEOC. The commission advises that employers assume that such requests are sincere, but  a consultation with your employment attorney can help ensure compliance with anti-discrimination laws.

Vaccination status must be kept confidential.

According to the EEOC, requesting proof of vaccination is not classified as a medical inquiry. However, in keeping with the Americans with Disabilities Act (ADA), employers must keep any medical information provided, such as a copy of the vaccination card, separate from the employee’s personnel file.

Mandates should not cause disparate impact.

Because some individuals or demographic groups face greater barriers accessing vaccinations than others, a vaccine mandate could negatively impact marginalized groups. Such groups may disproportionally include employees with protected characteristics such as race, national origin, or religion. Be mindful that requiring vaccines only for certain groups of high-risk employees such as maintenance or cafeteria staff could violate nondiscrimination laws.

Incentives are OK if not coercive.

The guidance on vaccine incentives makes a distinction between employer-sponsored vaccinations and those provided by third parties such as pharmacies or medical clinics. Employers can offer incentives to employees for voluntarily providing vaccination documentation from a third party without violating the ADA. Employer-provided vaccines can be incentivized as long as the incentive is “not so substantial as to be coercive.” To clarify, the EEOC explains, “because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

EEOC guidance does not carry the weight of a legal requirement but is valuable in considering how best to navigate vaccination requirements while being compliant with employment law. Be prepared to adjust policies as the pandemic evolves and be aware of local law that applies to your business. Stay in close touch with your employment attorney to make sure your policies are effective and nondiscriminatory. As always, we are happy to help.


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