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Although many businesses have not mandated that their employees get a COVID-19 vaccine, the EEOC’s recently released guidance confirms that federal equal employment opportunity laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated. It remains unclear whether not businesses can require employees to continue to work remotely to receive the vaccine.
Although employers may require vaccinations for returning employees, such mandates are still subject to reasonable accommodations required for individuals with disabilities or religious objections. In addition, employees who are not vaccinated because of pregnancy may be entitled to accommodations. The EEOC’s guidance provides several examples of reasonable accommodations, which might include maintaining social distance from other employees, wearing a mask, periodic testing, working an alternative schedule, or working remotely. It is important to have an interactive dialogue with employees who object on the basis of a disability, sincerely held religious belief, or pregnancy to determine what, if any, accommodation would be reasonable under the circumstances. The EEOC also reminded employers that to determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an individualized assessment of the individual’s present ability to safely perform the essential functions of the job must be undertaken.
Employers that choose to implement a mandatory vaccine program should also be aware of the potential for claims that implementation of such a program has a disparate impact on employees within a certain protected group. Because some demographic groups may face greater barriers to receiving a COVID-19 vaccine than others, some employees may be more likely to be negatively impacted by a vaccination requirement. Thus, risk-averse employers may choose to encourage (rather than require) employees to get vaccinated and educate employees as to the benefits of vaccination.
The new EEOC guidance also expressly permits employers to provide incentives to employees for providing proof of vaccination. However, if the employer is sponsoring its own vaccination program for employees, incentives offered cannot be so substantial so as to be coercive. In addition, the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees to have their family members vaccinated, but permits employers to extend the program to family members without incentive.
Finally, proof of vaccination is a protected medical record under the ADA and employers must take care to maintain its confidentiality, i.e., employers cannot generally share with the workforce the identity of who has or has not been vaccinated.
Guidance concerning the COVID-19 pandemic continues to evolve and leaves many employers with questions. If you have any questions or would like additional guidance, please contact our attorneys.