EEOC Gives Green Light to Employer Vaccine Incentives, Mandates
Author: Emily Scace, XpertHR Legal Editor
June 2, 2021
The Equal Employment Opportunity Commission (EEOC) has released updated guidance that addresses some of employers' most pressing questions about COVID-19 vaccinations in the workplace.
Echoing its earlier stance, the agency stated that federal EEO laws do not prevent an employer from mandating COVID-19 vaccinations for employees who physically enter the workplace. However, under Title VII and the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations for employees who do not receive a vaccine because of a disability or a sincerely held religious belief, unless such an accommodation would pose an undue hardship to the employer's business. Reasonable accommodations may include requiring unvaccinated employees to:
- Wear a face covering;
- Work a modified shift;
- Work in a physically distanced manner;
- Receive periodic tests for COVID-19; or
- Work remotely.
If an employer requires employees to receive a COVID-19 vaccination administered by the employer itself, or the employer's agent, it must be able to justify the pre-vaccination screening questions under the ADA by demonstrating that they are job-related and consistent with business necessity. The rationale for this, according to the EEOC, is that pre-vaccination screening questions are likely to elicit disability-related information protected by the ADA.
However, if an employer instead requires employees to provide documentation that they have obtained the COVID-19 vaccine from a third party, such as a pharmacy or public clinic, this is not considered a disability-related inquiry, although employers still must keep such information confidential and separate from the employee's personnel files.
The EEOC's updated guidance emphasizes the need for employers to be aware of the potential disparate impact of mandatory vaccination policies along the lines of race, color, religion, sex, age or national origin. For example, because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination, a mandatory vaccination policy could disproportionately impact employees in those categories.
In addition, employers must not apply a vaccination requirement in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age or genetic information, unless a legitimate non-discriminatory reason exists.
Answering another highly anticipated question, the EEOC clarified that employers may provide incentives to encourage vaccination.
If the COVID-19 vaccine is administered by the employer or its agent, any incentive provided must not be "so substantial as to be coercive," but the agency did not specify when an incentive crosses the line from permissible to coercive. Furthermore, under the Genetic Information Nondiscrimination Act (GINA), employers may not offer incentives to employees in return for the employee's family members getting vaccinated by the employer or its agent.
However, if an employer offers an incentive for employees who provide confirmation that they or their family members have received a vaccination from a third-party provider not affiliated with the employer, these incentive limitations do not apply.
The EEOC also encourages employers to provide employees and their family members with information to raise awareness of the benefits of COVID-19 vaccinations and address common questions and concerns. Among other measures, employers can help by:
- Directing employees to resources to identify vaccination sites;
- Providing information on available transportation to vaccination sites; and
- Offering time off for vaccination.