The EEOC has issued guidance on COVID-19 vaccinations for employers

Many employers are wondering, can I require employees to be vaccinated against COVID-19 before being allowed to return to work?  The U.S. Equal Employment Opportunity Commission (EEOC), which investigates claims of workplace discrimination, recently issued guidance on this question.

Can employers require their employees to get vaccinated?

Employers may require a COVID-19 vaccination of employers who are physically entering the workplace, but not for employees working remotely. However, employers must comply with these federal laws in allowing for exceptions:

• Americans with Disabilities Act (ADA): under the ADA, employers must provide a reasonable accommodation to employees who cannot get a vaccination for a medical reason, just as they must provide an accommodation for any other disability. These accommodations might include social distancing within the workplace or job site, periodic COVID testing, wearing a mask at work, or working a modified shift, among other things. The employer should take into account the ease of access to receiving a vaccination, as this varies among the population and may have a disparate impact on protected classes, such as persons of color.
• The Genetic Information Nondiscrimination Act (GINA) prohibits covered employers from using an employee’s genetic information to make employment decisions. To comply with GINA, employers should not ask employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.
• Civil Rights Act of 1964: Title VII of this statute prohibits discrimination in employment on the basis of race, color, national origin, religion, or sex (both gender and sexual orientation). If an employee has a sincerely-held religious belief that prevents him or her from getting vaccinated, the employer may not require it as a condition to return to work but must explore an accommodation similar to those for the ADA.

The EEOC has also stated that employers must treat information relating to an employee’s vaccination status as they would any other medical information about an employee, which means keeping it confidential and separate from the employee’s general personnel file.

Employers can offer incentives to get vaccinated

Employers may provide incentives to their employees to get vaccinated, as long as the incentives are not “coercive.” For example, a very large or generous incentive, like cash or additional paid vacation, might make employees feel pressured. Employers may also provide employees and their family members with educational information about the benefits of vaccination against COVID-19, but the EEOC cautions against recommending that employee’s get vaccinated. The CDC’s guidelines are a useful resource for providing information to employees.

The EEOC guidance is fairly detailed, so please consult that document, or contact Mark Spitz at Spitz Legal Counsel (email: mark@spitzlegalcounsel.com; phone: 720-575-0440) for more information.