As COVID-19 case numbers fall and more Americans become vaccinated and return to work, the EEOC has issued updated guidance for employers regarding vaccination. The EEOC guidance centers on, among other things, an employer’s ability to incentivize and/or require COVID-19 vaccinations for employees.
- Employers may provide incentives to employees to receive the COVID-19 vaccine. There are generally no limits to the rewards that employers can offer to incentivize vaccination. Employers have offered paid time off, extra vacation days, cash and gift cards. Where the employer is providing the vaccination directly, the EEOC guidance limits rewards that are so substantial they are considered coercive.
- Employers can require employee vaccination, with two exceptions: disability and religious accommodations. While most employers have not made vaccinations mandatory, under the Americans with Disabilities Act (“ADA”), the employer can maintain its requirement for vaccination where an unvaccinated individual poses a “direct threat.” The EEOC construes a direct threat as a risk of significant harm that cannot be reasonably reduced by an accommodation. For any requested accommodation, employers should follow their ADA assessment protocol. Regarding religious accommodation under Title VII, an employee may request a reasonable accommodation for religious practice or observance that prevents the employee from being vaccinated. So long as the employee’s request does not create an “undue hardship,” employers must provide an accommodation.
- Employers can require proof of vaccination. Many employers are requiring proof of vaccination upon returning employees to the workplace, rather than simply using the honor system. Employers are cautioned not to request any medical information outside the scope of the proof of vaccination and remember that any medical information obtained by an employer must remain confidential and separated from the employee’s personnel file.
- What about unvaccinated individuals? In returning individuals to the workplace, the Occupational Safety and Health Administration reminded employers in its recent updated guidance that employers should follow CDC and local agency guidelines; specifically, unvaccinated individuals should still be wearing masks and distancing in the workplace.
COVID-19 has caused major disruptions for employers and employees. With the updated EEOC guidance on COVID-19 vaccinations, employers have clearer guidance on managing the health and safety of their workspaces. The experienced lawyers in the Mansour Gavin’s employment practice group are here to help meet your needs. Should you have any questions or would like further clarification on this or other employment matters, reach out to Mansour Gavin’s Employment Group or contact us today.