- Federal equal employment opportunity laws do not prohibit policies requiring that all employees who physically enter a workplace receive a COVID-19 vaccination, so long as such procedures comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act as well as other applicable laws, according to from the U.S. Equal Employment Opportunity Commission 28.
- Title VII and the ADA require employers to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get unless providing an accommodation would pose an undue hardship on the operation of the employer’s business, EEOC said. Employers with such a requirement also may to respond to allegations that the condition has a disparate impact on or disproportionately excludes an employee based on protected characteristics, including age, race, color, religion, sex, and national origin.
- Employers also may offer incentives to employees to voluntarily show documentation or confirmation that they have . Still, the agency outlined some limits if employers incentivize employees to freely accept a vaccine administered by an employer or its agent. An employer may offer an incentive to employees to provide documentation or other confirmation from a not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.
The long-awaited document may answer some employers’ questions regarding, but other areas may be less certain.
Take, for example, the issue of incentives. Employers, per the document, may offer incentives to employees to voluntarily receive a vaccine, whether the employee gets the vaccine on their own from a pharmacy,health partner or whether the employee gets a vaccine administered by the employer or an agent of the employer.
In the latter case, however, such an incentive may only be offered under the ADA if it “is not so substantial as to be coercive,” EEOC said. “Becauseemployees to answer pre-vaccination disability-related screening questions, a large incentive could pressure employees to disclose protected medical information.”
That limitation does not apply to incentives offered to employees to voluntarily provide documentation or other confirmation that they have received a vaccine from a third-party provider that is not an employer or an agent of their employer, per EEOC. For employers incentivizing shots they offer either themselves or through their agents, there may be uncertainty as to what constitutes an incentive that is not so substantial as coercive.
“This is a situation in which [EEOC] completely ducked the question,” said Barry Hartstein, shareholder at Littler Mendelson and co-chair of the firm’s EEO and diversity practice group, noting the distinction between financial incentives and more available incentives, such as time off to receive a vaccination.
EEOC’s document also does not address concerns about thehave been made available under the Food and Drug Administration’s Emergency Use Authorization, which is notable because some organizations have argued against requiring the vaccine “because it’s only been issued under the Emergency Use Authorization,” Hartstein said.
In addition to the section of its technical assistance stating that employers need to respond to allegations that a vaccination requirement may disparately impact or disproportionately exclude an employee or group of employees, EEOC noted that employers “should keep in mind that because some individuals or demographic groups may face greater barriers to receiving athan others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
document could effectively serve as a word of caution to employers. “It was gentle, or not so gentle, reminder that neutral policies, on their face, that have a disparate impact may be subject to scrutiny.”
To the extent that employers are making a distinction between vaccinated and unvaccinated employees, Hartstein said employers may need to be careful to ensure that those who choose not to be vaccinated are not treated in a discriminatory manner.
“The updates should reassure and help guide employers seeking to mandate or encourage employee vaccination by their obligations underfor vaccine documentation,” Pierce Blue, senior attorney at Morgan Lewis, said in an email to HR Dive. “This continues to be a developing area of law, however, and we advise employers to contact counsel for guidance on specific questions.”
Clarification: This story has been updated to clarify limitations on incentives employers may provide employees to receive a COVID-19 vaccine voluntarily.