On May 28, the U.S. Equal Employment Opportunity Commission (EEOC) released updated and expanded guidance related to COVID-19. The goal of this guidance is to help employers navigate vaccine-related legal issues, especially surrounding COVID-19 vaccine mandates for employees and providing incentives to encourage employees to get vaccinated. The guidance covers how the EEOC will view these issues under applicable federal laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964.

Generally, employers do have the legal right to mandate their workforce get the COVID-19 vaccine as a condition of employment. But for many employers, a more complicated question remains – just because they can mandate it, should they? Although the EEOC’s COVID-19 guidance has been updated and expanded, it can still be confusing. To help both employers and workers understand the EEOC guidance and their options, we’ve summarized the highlights below.

A LIUNA member gets vaccinated at a voluntary vaccine clinic hosted by the New York State Laborers’ Health & Safety Fund

Vaccine Mandates, Exemptions and Accommodations

An employer may require all employees physically entering the workplace to be vaccinated for COVID-19 (it doesn’t matter whether the employee receives the vaccine in the community or from the employer).

Employees may be exempted from a mandatory vaccination requirement either because of a disability or a sincerely held religious belief. Employers may be required to provide reasonable accommodations to these employees, unless doing so would pose an undue hardship on business or create a direct threat to the health of others. The EEOC suggests that reasonable accommodations could include masking, working at a distance from coworkers or non-employees, working modified shifts, getting periodic tests for COVID-19, teleworking or reassigning the employee.

Offering Vaccine Incentives

Employers can offer incentives to employees who voluntarily provide documentation or other confirmation of vaccination obtained from a third party in the community, such as a pharmacy, personal health care provider or public clinic.

Employers administering vaccines directly to their employees may offer vaccine incentives as long as the incentives are not coercive. Because administering the vaccine involves asking certain disability-related screening questions, there is a concern that very large incentives could make employees feel pressured to disclose protected medical information. Unfortunately, the EEOC guidance does not include what is considered a “large incentive.”

Other Important Considerations

• Employers must be careful to keep vaccination information confidential. This should include ensuring that vaccination information is kept separate from employees’ general personnel files.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
• Employers should keep in mind that some individuals or demographic groups may face greater barriers to getting a vaccine; as a result, some employees may be more likely to be negatively affected by a vaccination requirement than others.

As with most workplace guidance related to EEOC laws, speak with your employment attorney before taking action to ensure that your anticipated approach is legal. In addition, employers should keep in mind that the EEOC’s guidance only covers federal EEO laws and that some state and local laws may place greater restrictions on an employer’s ability to mandate vaccinations in the workplace or provide vaccine incentives.

[Jamie Becker is the Fund’s Director of Health Promotion.]