As employees transition back into the office and COVID-19 remains a threat to public health, we are witnessing a national trend in mandatory employee vaccinations. However, these mandates are raising questions from employers and employees regarding the legality and considerations of requiring on-site and off-site employee vaccination.
First, it is important to know that the U.S. Equal Employment Opportunity Commission (the “EEOC”) last updated its guidance for employers regarding mandatory vaccination requirements on May 28, 2021. These updated guidelines advise employers that they can, if they wish, require that their on-site workers be vaccinated against COVID-19 before returning to work.
If an employer decides to require COVID-19 vaccination for its employees, they will need to be cognizant of a few things, detailed below.
Physical Location of Employee
The EEOC states that employer mandated vaccination policies may only extend to employees physically present at a worksite. Therefore, if employees are still entirely work from home, then employers should not require these employees to be vaccinated.
ADA and Title VII Compliance
The EEOC states that any vaccine mandate must comply with the ADA and Title VII. If an employee cannot receive the vaccine for health reasons or based on a sincerely held religious belief, the employer must consider reasonable accommodations for that person. For example, unvaccinated employees must wear a face mask or work physically distanced from other employees or customers. It is important to note that the employer need only make an effective accommodation under the circumstances if there is one that doesn’t create an undue hardship.
Proof of Vaccination
The EEOC states that employers may ask for proof of vaccination and that such a request would not be considered a restricted disability-related inquiry under the ADA. However, the proof of vaccination would be considered employee medical information requiring the employer to keep the employee health information confidential, separate from other employee information, and subject to other ADA requirements surrounding medical information.
Under the EEOC guidance, employers may offer incentives to employees to get the vaccine. These incentives may include penalties – although, in practice, we’ve found this is not the predominant method employers take.
For now, the EEOC continues to take the position that companies may do what they find necessary to promote the health of their workers and the safety of the workplace regarding COVID-19 provided they follow the standard ADA, Title VII, and Genetic Information Nondiscrimination Act (“GINA”) rules. We expect further developments and guidance from the EEOC on this topic and individual states may apply existing laws differently or pass new laws surrounding this topic.
President Biden’s Covid-19 Plan
In addition to the current guidance, President Biden recently announced a comprehensive national COVID-19 strategy, which includes the requirement of employees with 100 or more employees to ensure that workers are either vaccinated or tested on a weekly basis. According to the official website of The White House, this rule is in development by the Department of Labor’s Occupational Safety and Health Administration (OSHA) and will be implemented as an Emergency Temporary Standard (ETS). It is important to know that at the time of this article publication, the ETS has not yet been specified nor issued. We will provide more details as they develop.