U.S. Updates Guidance on COVID Vaccine Mandates, Incentives, Privacy in Workplace

June 1, 2021

Federal employment laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, the Equal Employment Opportunity Commission (EEOC) has affirmed.

Also, employers may offer incentives for employees to get vaccinated and must keep any vaccination information they obtain from employees confidential.

The EEOC posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions arising under the federal equal employment opportunity (EEO) laws.

The EEOC also released a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic.

The expanded technical assistance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent.

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EEOC emphasized that the technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.

The key updates to the technical assistance are summarized below by EEOC include:

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. According to the EEOC, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
  • Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

Most employers are not requiring every employee to be vaccinated, although there have been reports of workers losing their jobs for refusing to be vaccinated.

Michelle S. Strowhiro, a lawyer at McDermott Will & Emery, told The Associated Press that many employers want to avoid the administrative burden of tracking compliance and managing exemption requests. They also worry that legal claims could result.

The Houston Methodist Hospital network in Texas is one employer that is requiring all employees to get vaccinated by June 7 or risk losing their jobs or being suspended. More than 100 employees have joined a lawsuit challenging the mandate on the grounds it violates Nuremberg Code provisions meant to prevent drug experimentation on humans without their consent.

States often allow people to opt out of vaccination requirements for medical or religious reasons. Some states also require vaccinations for college students and certain health care workers, also with exemptions.

Some states including Ohio, West Virginia and New York have offered financial incentives for citizens to get vaccines and some employers including Walmart, American Airlines, McDonald’s and Trader Joe’s are also offering incentives.

More than 20 states have considered legislation to ban employers from requiring vaccines but they have encountered opposition from employers citing their need to maintain safe workplaces.

Related:

Topics COVID-19 USA Commercial Lines Business Insurance Privacy

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