Earlier this morning, the Equal Employment Opportunity Commission (“EEOC”) published new guidance addressing questions regarding employer vaccination programs. Several of these issues had yet to be addressed by the EEOC until now.
The newly issued FAQs address several topics related to COVID-19 vaccination programs, including whether employers can require the vaccine as a condition of employment, what incentives can be offered to get employees vaccinated, and how employee vaccination records must be treated by employers. The EEOC’s answers to these questions are highlighted below.
Can Employers Require COVID-19 Vaccination As a Condition of Employment? Answer – Yes.
In response to the question, “Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?” the EEOC stated that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” with the caveat, as we have previously reported, that employers must still accommodate employees’ disabilities and sincerely held religious beliefs which prevent them from complying with a vaccination mandate, unless doing so imposes an undue hardship or causes a direct threat.
Can Employers Provide Incentives for Employees Who Get Vaccinated? Answer – Yes.
In response to the question “ may an employer offer an incentive to employees for voluntarily receiving a vaccination . . .” the EEOC’s guidance is twofold. If the employer itself is the one administering the vaccination, then the EEOC notes that the practice is permissible, so long as “any incentive (which includes both rewards and penalties) is not so substantial as to be coercive,” going further to note that “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.”
However, if the employer or its agent is not administering the vaccine but is only offering an incentive for employees to provide documentation or other confirmation that they have received a vaccination (which, as we have previously noted, is not a disability-related inquiry) then offering an incentive is permissible, per the new EEOC guidance.
Is a Record of an Employee Receiving COVID-19 Vaccination Considered Confidential Medical Information under the ADA? Answer – Yes.
Finally, the EEOC notes the following with respect to how employee vaccination information must be kept by employers:
The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.
Bottom Line
This newly issued guidance provides answers to many important questions regarding COVID-19 vaccination programs in the workplace. The answers to these questions appear to indicate a favorable stance by the EEOC towards companies encouraging (or ensuring) that their employees are vaccinated, both under mandatory policies as well as through incentive programs.