Tuesday, June 1, 2021

New EEOC guidance on COVID vaccines: employer mandates and incentives

At long last, we have the updated EEOC guidance on COVID-19 vaccinations. The two big questions I keep getting are:

  • Can employers require employees to get the vaccine? 
  • Can employers incentivize employees to get the vaccine. 
The answers are generally yes and yes - but, as always, with a few caveats. 

Mandates (where the employer is *not* administering or contracting with someone else to administer the vaccine to the employee)
Not official use.
  • Employees who cannot get the vaccine due to a disability or religious belief may be entitled to an accommodation;
  • Some possible accommodations: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment;"
  • Generally, employers have a defense to an accommodation claim where the employee poses a "direct threat" to health and safety - in this situation, the EEOC noted some factors: up-to-date CDC guidance, and "whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing;"
  • Note that it gets more complicated where the employer is administering the vaccine, or contracting with someone else to administer the vaccine, to the employees. 
Incentives
  • Full-throated "yes" from the EEOC on whether employers can offer incentives to employees and their family members to get vaccinated by their own doctor or pharmacy;
  • But, if the vaccination is administered by the employer or its agent, then the incentive must not be "so substantial as to be coercive" (and good luck finding a good definition of what that means); and 
  • GINA prohibits offering an incentive to the employee for the employee's family member to get vaccinated because it may require disclosure of the employee's family medical history.
Odd and Ends
  • "[T]he employer is required to keep vaccination information confidential pursuant to the ADA;" and
  • As you can probably tell from above, it is much more convoluted and difficult if the employer (or its agent) administers the vaccine.
As always, read the full guidance for additional information. 

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