The U.S. Equal Employment Opportunity Commission (EEOC) today issued updated and expanded guidelines concerning Covid-19 vaccination requirements and incentives for employees. The guidelines address several pandemic-related matters that have challenged employers for several months.

The agency said that federal equal employment opportunity laws:

• Do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for Covid-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other considerations.
• Do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.

According to the EEOC, “If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.”

On other related matters, the federal agency said employers:

• That are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
• May provide employees and their family members with information to educate them about Covid-19 vaccines and raise awareness about the benefits of vaccination.

Justin M. Harrison, a member of the Jackson Kelly law firm’s labor and employment group, said, the new guidance, “... addresses several issues regarding vaccinations that have challenged employers since the end of 2020.”

Vaccination Incentives

Harrison said that, “In a moment of rare and welcomed clarity, the EEOC notes that employers can provide incentives to employees who voluntarily become vaccinated, and that providing such incentives is not ‘coercive’ to individuals with disabilities who cannot receive the vaccine (unless the employer itself is providing the vaccine). This is the right approach, but it would have been more beneficial had this guidance been issued several months ago when vaccines first became available.”

Continued Frustration For Some Employers

Harrison observed that, “Unfortunately, the new EEOC guidance will continue to frustrate some employers, especially healthcare employers. The EEOC remains steadfast in its approach that employers should provide reasonable accommodations to employees with religious or medical objections to receiving the vaccine.

“This approach is inconsistent with the EEOC’s acknowledgment that Covid-19 constitutes a direct threat. Normally, employers are not required to provide accommodations if doing so constitutes a direct threat to the safety and welfare of employees. Arguably, an unvaccinated individual working in patient care presents a direct threat to the patient and perhaps others,” Harrison said.

“If anything, Covid-19 has taught us that federal employment law represents an impediment to controlling an international pandemic,” he concluded.

Creating An Interesting Dynamic

Travis Forster, the chief legal officer at Work Shield, said, “the new EEOC laws regarding vaccines create an interesting dynamic for employers. On the one hand, employers want their employees safe and vaccinated, in general. On the other hand, they also want to respect the choices of their employees.”

More Leeway

“Given this,” Forster said, “employers can now determine what type of Covid/vaccine policy they really want for their culture, including any [right to work] strategy and policy. I believe that most employers will want their employees vaccinated, subject to reasonable accommodations and ADA aspects. The best way to implement this is for employers to provide some form of incentive or accommodation for vaccinations - monetary amounts, paid time off for any side-effects, etc.”

Vaccination Documentation

He said, “The other interesting impact is the documentation of vaccination. I think as a general rule, most employers will ask employees to sign-off that they were vaccinated versus providing documentation with incentives (some of which may be quite large) - especially given the administrative burden and risk of liability.

“Overall, I think this will be welcomed by employers across the U.S. to help alleviate any fear, anxiousness or otherwise of those employees looking to get back to work in a safe and secure office setting,” Forster said.