Employers can legally require COVID-19 vaccination for employees to re-enter the workplace and can provide incentives to encourage employees to get a shot, according to new guidance issued Friday by the Equal Employment Opportunity Commission.
Companies are still required to provide reasonable accommodations for employees who are exempt from mandatory immunization based on the Americans with Disabilities Act, Title VII of the Civil Rights Act and other federal laws.
The commission, which enforces workplace anti discrimination, said employer requirements and incentives can’t be “coercive” but didn’t provide examples of illegal offers. The guidance also says that companies should work to find alternative arrangements for employees who are unable to get vaccinated for medical, disability, or other reasons.
“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,” the commission wrote.
It would also be illegal to apply a vaccination requirement in a way that treats employees differently based on race, national origin, religion, sex, sexual orientation, gender identity, pregnancy, disability, age, or genetic information, the EEOC wrote.
Employers can offer incentives for employees to voluntarily confirm their vaccination status, but those should be optional, the commission said. Employers shouldn’t pressure their employees to share information, and any medical information — such as vaccination records — must be kept confidential.
Companies are also required to provide a safe workplace based on Occupational Safety and Health Administration (OSHA) guidelines, according to ABC News. This includes assessing the risk of exposure to COVID-19 and developing a plan to protect employees. With COVID-19 vaccines, this could mean requiring the vaccine, providing personal protective gear, or setting capacity limits in the physical workplace.The new guidance answered some legal questions but still creates enough room for interpretation that could prompt lawsuits as companies bring their workers back to the workplace, according to CBS News. If companies follow CDC guidance and allow vaccinated employees to go without a mask but require unvaccinated employees to wear a mask, for instance, employers could find themselves in the position of policing the workplace and asking employees to disclose their medical information.
“I am waiting for the floodgates to open on litigation in this area,” Helen Rella, an employment attorney at the New York-based law firm Wilk Auslander, told CBS News.
Employees who don’t get vaccinated due to a disability, religious belief, or other reasons may be entitled to a reasonable accommodation, the commission said. This could mean requiring a face mask, physical distancing, modified shifts, telework arrangements, or work reassignment, the EEOC wrote.
Companies can also provide employees with information about COVID-19 vaccines to educate them, raise awareness about the benefits of the vaccine, address common questions, and provide incentives. Employers can also share information about vaccine sites, low-cost transportation, and community resources about vaccination. Employers can offer time off for vaccination, especially if transportation isn’t readily available outside of regular work hours, the commission wrote.
The updated guidance is meant to answer COVID-19 vaccination questions based on federal equal employment opportunity laws, the commission wrote. Other federal, state and local laws may come into play regarding the pandemic and vaccinations for employers and employees.
“The updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” Charlotte Burrows, the EEOC chair, said in a statement.
“The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information,” she said. “We will continue to address the issues that were raised at the Commission’s recent hearings on the civil rights impact of COVID-19.”