Updated technical assistance from the Equal Employment Opportunity Commission (EEOC) clarifies how employers can require or encourage employees to take a COVID-19 vaccine, but attorneys advising employers point out how the document also contains cautions.

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The EEOC updated its technical assistance on May 28 to address questions about how federal equal employment opportunity (EEO) laws may be implicated by employer policies related to COVID-19 vaccinations. The agency points out that its technical assistance answers coronavirus questions only from the perspective of federal antidiscrimination laws, and employers must remember other federal, state, and local laws also may affect their policies.

In the updated guidance, the EEOC says federal EEO laws don’t prevent employers from requiring an employee physically entering the workplace to be vaccinated so long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

The guidance also notes employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a vaccination, some employees may be more likely to be negatively affected by a vaccination requirement than others.

The guidance adds employers can offer incentives for employees to get vaccinated as long as the offerings are “not coercive.” Since vaccinations require employees to answer disability-related screening questions, a large incentive could make employees feel pressured to disclose protected medical information, the EEOC says.

Advice to Employers

No matter what employers decide about requiring or encouraging employees to get vaccinated for COVID-19, they should consider how their policies might implicate antidiscrimination laws.

“Employers should immediately read and understand the revised EEOC guidance, which gives them more tools to incentivize and, in some cases, mandate vaccinations,” Paul J. Sweeney, an attorney with Coughlin & Gerhart, LLP in Binghamton, New York, says.

“As set forth in the revised EEOC guidance, a mandatory vaccination policy should still make allowances for protected groups who may have valid ‘access to vaccine’ issues for not getting a vaccination as well as for those employees who have a medical or religious-based reason for not getting vaccinated,” Sweeney says.

The EEOC has said employers can require vaccination with some exceptions related to the ADA and Title VII. The ADA requires employers to consider whether they can accommodate employees who have a disability-related reason for not taking the vaccine, and Title VII requires employers to try to accommodate employees whose sincerely held religious beliefs or practices prohibit vaccination. In both cases, accommodations aren’t required if they put an undue hardship on the employer.

Employers also need to consider how their vaccination policies might have a “disparate impact” on certain employees since those policies also may violate Title VII, Sweeney says. He advises employers to be flexible when setting vaccination policies since the guidance points out it is based on ever-changing information.

Peter D. Lowe, an attorney with Brann & Isaacson in Lewiston, Maine, advises employers to remember how pregnant employees may be affected by vaccination policies. He says the EEOC reminds employers about considering “adjustments” for pregnant employees if the employer makes exceptions for other employees. “In other words, remember to reasonably accommodate pregnant employees as well,” he says.

Lowe also advises employers to keep vaccine information confidential. In its updated guidance, the EEOC has said both documentation and “other confirmation” of COVID-19 vaccinations constitute confidential medical information under the ADA. “‘Other confirmation’ is a broad term, so employers should treat oral disclosures in a confidential manner,” he says.

Lowe also points out the “best practices” the EEOC notes in its guidance. “We take this to be advice to employers, as compared to requirements,” he says. The agency’s best practices include explaining in a vaccine policy that the employer will consider reasonable accommodations based on disability and religion. The agency also says a best practice includes training supervisors how to handle accommodation requests for vaccine exemptions.

Legal Risks

Lowe says the biggest issue raised to date by legal challenges to mandatory vaccines is related to the U.S. Food and Drug Administration’s designation of the three COVID-19 vaccines in use in the United States.

The vaccines have been granted Emergency Use Authorization (EUA). “EEOC understandably passes on the question whether EUA prohibits mandatory vaccination policies by noting it’s ‘beyond the EEOC’s jurisdiction,’” Lowe says.

Although the new guidance from the EEOC spells out that employers may require vaccines for all employees “entering the workplace” provided some accommodations are made, Lowe says the reference to “entering the workplace” is clearly intentional. “It leaves open the question whether all employees, including those who never step foot in the workplace, could be subject to mandatory vaccinations,” he adds.

Martin J. Regimbal, an attorney with The Kullman Firm in Columbus, Mississippi, says the greatest risks for employers under federal antidiscrimination laws center on the failure to provide accommodations based on religion or disability as well as requiring employees to reveal protected medical information and failing to protect medical information.

The new guidance notes information about an employee’s COVID-19 vaccination must be kept confidential and stored separately from the person’s personnel files. Employers also face legal risk if their vaccination incentives are so significant that they are seen as coercive or pressuring employees to reveal protected medical information, Regimbal says.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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