EEOC: Businesses May Mandate COVID-19 Vaccinations

The federal government has given the green light to companies that plan to reopen their offices and workplaces. They may require that employees who are returning to work be vaccinated against COVID-19.

On May 28, the Equal Employment Opportunity Commission issued an advisory stating that employers could require vaccinations for those who are returning to the job as long as they are not “coercive” and meet other legal requirements.

It is important that you remember that the assertions made by EEOC are more a clarification of existing laws and policies than an announcement of anything new. It is not a matter of “What are you doing?” Whichever Employers can make it mandatory that employees are vaccinated. The U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) made clear in 2009 that an employer is allowed to do that.

Confidentiality of Medical Information

The more pressing question concerns legal risks that could be created if employees refuse to vaccinate. Employers with at least 15 employees must abide by the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act (CRA), both of which allow employees to claim exemptions from a vaccine requirement. Under the ADA, an employee can claim to have a disability that prevents them from taking a vaccine, and the CRA says employees can opt out if they can demonstrate “a sincerely held religious belief, practice, or observance.”

The law says that in those instances an employer must provide “reasonable accommodations” to the people who meet the standards of the ADA and the CRA and who refuse to be vaccinated.

The EEOC stated last year, however, that COVID-19 posed a “direct threat” that “cannot be eliminated or reduced by reasonable accommodation.” This meant that workers who sought exemptions from vaccination requirements were on less solid legal ground.

Employers Remain Hesitant

Employers were still cautious about legal uncertainties. Early this year, the law firm Fisher Phillips conducted a survey of employers and found that only 9% were considering vaccination mandates; on the other hand, 78% were encouraging vaccinations. 

In its May 28 advisory, EEOC stated that employers may require vaccinations if they adhere to the reasonable accommodation provisions of ADA and CRA.

But, as the New York Times reported June 1, there are other legal risks.

First, some companies say they are hesitant to require COVID-19 vaccinations because the vaccines that have been authorized by the Food and Drug Administration have still not received full FDA approval – the vaccinations are being administered under an emergency-use authorization.

“Another reason many companies remain hesitant, according to executives, lawyers and consultants who advise companies, is the long list of legal considerations the E.E.O.C says they must follow before mandating vaccines,” the Times reported.

Douglas Brayley, an employment lawyer at Ropes & Gray, told the Times, “I think the fact that it takes the E.E.O.C. Employers might still refuse to mandate because they have several pages of notes that detail the steps needed to accommodate someone with a disability or religious reason for not being able to get a vaccine.

Offering Vaccination Incentives

Some employers have taken a step beyond encouraging employees to get vaccinated and are providing financial incentives for them to do it – cash, time off, coupons, etc. The EEOC issued a May 28 guidance that confirmed that this is acceptable. However, it made a distinction between vaccinations administered by employers and those provided by clinics, pharmacies, or public health departments.

Employers can offer employees incentives to get vaccinated at a third party site. The EEOC stated that there are no laws that restrict the ability of employers to do this. However, employers must keep confidential information about who they obtain the vaccination information from, as required under the ADA.

The EEOC stated that incentives are acceptable if a company provides the vaccination. However, they must be more cautious in offering them.

“Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose medical information,” the EEOC said.

And what about masks?

Every week, the challenges employers face in preparing for normalcy are changing. For example, the Centers for Disease Control and Prevention ruled that maskless wearing is acceptable for fully vaccinated individuals. This raises the question of whether employers are ready to monitor mask wearers. If they do, it could be risky for them to ask employees for health information.

It does seem that employers will require employees to be vaccinated in order to retain their jobs. Although details must be clarified, the direction is clear.

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Cyndy Lane