New federal guidance from the Equal Employment Opportunity Commission (EEOC) issued on May 28 permits policies requiring employees who enter a workplace to receive a COVID-19 vaccine, provided those policies comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA), as well as Title VII of the Civil Rights Act and any other relevant statutes.
Under the new guidance, employers are permitted to offer incentives to employees to confirm they have received a COVID-19 vaccine, as long as the incentives are not so substantial as to be coercive. Employers may also offer incentives to employees to get their family members vaccinated.
However, because vaccinations require employees to answer screening questions about disabilities, incentives substantial enough to pressure employees into disclosing protected medical information are likely to be considered coercive and, therefore, prohibited.
Since vaccination records are considered medical information, employers must keep those records confidential and maintain them as medical records.
As the new guidance notes, employers should remember that some employees or demographic groups could face more substantial barriers to receiving a vaccination than others and, thus, would be more likely to be negatively impacted by a vaccination requirement.
Reasonable accommodations should be made for employees who are not vaccinated due to pregnancy or due to an ADA-approved disability or a sincerely held religious belief. Defining a “reasonable accommodation” is case-specific and considers the employee’s job duties, as well as whether the accommodation is sought under the ADA or a sincerely held religious belief.
The EEOC will very likely continue to update its COVID-19 mandatory vaccine requirement guidance, so look for updates on this issue from Private Duty Source. Meanwhile, NAHC urges you to read the guidance itself.