On May 28, 2021, the U.S. Equal Employment Opportunity Commission updated its guidance regarding employer COVID-19 vaccination policies. The new guidance provides much-needed clarification of expectations for employers seeking to promote workplace safety and prevent the spread of COVID-19, including discussion of mandatory vaccination policies, voluntary vaccination incentives, and accommodation of employees based on disability or sincerely held religious beliefs. The full text of the update is found in Section K of the EEOC's COVID Q&A document. You can also learn more about these and other developments from BMD's Bryan Meek and Monica Andress through the Employment Law After Hours YouTube channel, available here.
Can employers require employees to get the COVID-19 vaccine?
Yes, the EEOC guidance explains that federal laws do not prevent an employer from requiring employees who are physically in the workplace to be vaccinated for COVID-19.
Must employers make any exceptions to a mandatory COVID-19 vaccine policy?
Yes, in certain cases, employees may be entitled to reasonable accommodation due to a disability or a sincerely held religious belief, unless the accommodation imposes an undue hardship on the employer.
If an employee refuses to get the COVID-19 vaccine based on a disability, the employer should engage in an interactive process to determine if accommodation is appropriate. If the employee has a qualifying disability that prevents vaccination, the employer should evaluate whether the unvaccinated employee is a direct threat to the safety of the workplace. This is a case-by-case determination that should consider such factors as the level of community spread of COVID-19 at that time, whether the employee works alone or in close proximity to others, frequency and duration of interactions with others, the extent of vaccination or mask-wearing in the workplace, and space available for social distancing.
If the unvaccinated employee poses a direct safety threat, the employer should then consider whether a reasonable accommodation would eliminate the threat. Accommodations could include permitting the unvaccinated employee to wear a face mask, social distance from coworkers and others, work a modified shift, get periodic tests for COVID-19, telework, or accept a reassignment to a different position that alleviates the risk. If reasonable accommodation will not eliminate the direct safety threat, or it otherwise imposes an undue hardship based on cost or other factors, the employer would not need to provide an accommodation to the employee.
Can employers provide incentives that encourage employees to get the COVID-19 vaccine?
Yes, employers may offer incentives, including monetary incentives, to encourage employees to get the COVID-19 vaccine. Note that if the vaccine is administered directly by the employer or its agent, the incentive must not be "so substantial as to be coercive." This limitation does not apply if the employee gets the vaccine on their own from a third party.
Can employers request documentation of vaccination from employees in connection with an incentive program?
Yes, an employer can make voluntary vaccination incentives
contingent on the employee providing documentation verifying that
they received the COVID-19 vaccine.
What other requirements should employers keep in mind related to COVID-19 vaccination policies?
- Any documentation or information regarding an employee's vaccination, like any other medical information, must be kept confidential and stored separately from the employee's personnel files.
- Employer vaccine policies must comply with federal nondiscrimination laws, and such policies should not treat groups of employees differently based on protected categories, including race, national origin, color, sex, religion, age, or disability.
- If an employee is fully vaccinated and still requests an accommodation because of risks related to COVID-19 (e.g., due to being immunocompromised), the employer should treat it like any other accommodation request, engage in the interactive process, and explore potential reasonable accommodations.
The BMD Employment and Labor Law Practice Group will keep you updated as further developments arise.
Originally published June 3, 2021
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