As the COVID-19 vaccine is fairly new, and lawsuits regarding employers mandating vaccines are still arising, this area of law is not yet settled. Legal experts on health policy have varying opinions on the issue. However, what can be discussed with clarity is the stance of the EEOC with regard to whether employer mandates run afoul of anti-discrimination laws, and what can be done to ensure compliance.
Do Employer Mandated Covid-19 Vaccine Requirements Conflict With the EEOC?
Under Equal Employment Opportunity Commission (EEOC) guidelines, the answer is no, but only if proper accommodations are made.
Under EEOC, employers have the power to set vaccine mandates for various diseases including flu, measles, and mumps. This is especially true in healthcare fields. In May, the EEOC said employers can also require staffers to be inoculated against COVID-19. However, workplaces must make accommodations to workers who decline the vaccine due to health conditions or religious beliefs. It is important to note pregnancy may also be considered a valid reason to decline the vaccine under the EEOC. An exempt employee cannot be fired outright due to non-compliance.
What Kind of Accommodations Must Be Made?
Those who decline vaccination due to EEOC exceptions may be entitled to a “reasonable accommodation”. A reasonable accommodation is one that does not pose an undue hardship on the operation of the employer’s business. Some examples of reasonable accommodations would be allowing the employee to work from home, wear a mask, and/or practice social distancing in the office, or move to a different part of the business where interaction with others is limited.
Can I Know Employees’ Vaccination Status?
Employers are allowed to offer incentives for employees to voluntarily confirm their vaccination status, but sharing should be optional and employers should not pressure employees into sharing their medical information. Also, any medical information shared with the employer, including vaccination records, must be kept confidential pursuant to the ADA.
Can I Offer Incentives for Vaccinating or Sharing Vaccination Status?
Employers may offer incentives to their employees who receive COVID-19 vaccines and voluntarily share documentation of the same, but there are limitations. Any offered incentive, whether a reward or penalty, to encourage confirmation is considered improper by the EEOC when “it is so substantial to be coercive”. The next question would be: what is considered substantially coercive by the EEOC? The term is not clearly defined. “In the absence of guidance, anything over a de minimis type of incentive would be a risk,” according to Elizabeth Pendo, a professor at the Saint Louis University School of Law. “We can think of it as, what if the incentive offered would be something that would make the employee feel that they needed to disclose information that they otherwise would have liked to keep confidential—that’s at the heart of it.”
This incentive limitation does not apply if an employer offers an incentive to employees to voluntarily confirm they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.
The Bottom Line
COVID-19 has introduced more complexities regarding the rights of employers and employees in the workplace. New questions requiring a higher level of legal expertise continue to arise on a daily basis. We’d like to help guide and protect your business and livelihood in these times. If you have more questions about what constitutes proper and improper policies, contact us at 714.456.9118 or send us an email at firstname.lastname@example.org.