EEOC Guidance for Employers on COVID-19 Vaccines in the Workplace

The increasing availability of the COVID-19 vaccine has employers contending between their obligations under various federal laws and the desire to encourage or require employees to receive the COVID-19 vaccine. Initial guidance on COVID-19 vaccinations provided by the Equal Employment Opportunity Commission (EEOC) in December 2020 left many employers with unanswered questions. On May 28, 2021, the EEOC issued supplemental guidance involving mandatory vaccines for employees, the potential need for reasonable accommodation, and incentivizing voluntary COVID-19 vaccinations.

The EEOC advised that federal law does not prevent an employer from mandating a COVID-19 vaccination prior to an employee entering a workplace, so long as the employer complies with reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Employers should remain cognizant that some individuals or demographic groups may encounter barriers to receiving the COVID-19 vaccine; any mandatory vaccination requirement may not disparately impact any protected class. The guidance is silent regarding an employer’s ability to mandate vaccinations for remote workers.

A reasonable accommodation may be required for an employee who declines to receive the vaccine due to a disability, religious belief, or pregnancy, unless doing so would pose an undue hardship on the employer’s business or create a direct threat to the health of others. Examples of potential reasonable accommodations may include wearing a face mask; social distancing from co-workers; working a modified shift; or working remotely. Any reasonable accommodation discussion requires an interactive process between the employer and employee.

The EEOC also advised that employers may incentivize receiving the COVID-19 vaccination, so long as the vaccine is obtained from a third party who does not have any contract with the employer. If the employee is receiving the vaccination from the employer, which is also permitted according to this guidance, any incentive may not be so substantial to be considered coercive. An employer may ask employees to provide documentation regarding vaccination status, but the employer is required to keep said information confidential.

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