EEOC Issues Guidance for Employers on COVID-19 Vaccine Mandates and Incentives

Alerts / June 9, 2021

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued long-awaited guidance to help employers navigate the implications of the COVID-19 vaccine in the workplace. As more and more Americans receive the vaccine, the EEOC’s latest release addresses employer-sponsored vaccine mandates and incentive programs.

Vaccine Mandates

The EEOC clarifies that under the federal equal employment opportunity (EEO) laws, employers can require employees who physically enter the workplace to be vaccinated for COVID-19. However, employers may be required to exempt from any vaccine mandate certain employees who are unable or unwilling to get vaccinated because of a disability or a sincerely held religious belief, practice or observation and to provide those employees with a reasonable accommodation, unless providing such accommodation would pose an undue hardship on the employer’s business. Examples of possible reasonable accommodations include wearing a face mask, working at a social distance from others, working a modified shift, periodically testing for COVID-19, teleworking or reassignment. All requests from employees for reasonable accommodation should be considered on an individual basis, and due to the intricacies of the federal EEO laws, we encourage employers to contact our Labor and Employment Practice Group for further guidance when facing a request for reasonable accommodation.

Employers that choose to implement a COVID-19 vaccine mandate must be sure to administer the vaccine requirement in a nondiscriminatory manner, and they should be mindful that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than do others.

Vaccine Incentive Programs

The EEOC’s latest release also confirms that employers can offer incentives to employees who received the COVID-19 vaccine outside the workplace, such as at a pharmacy or from a personal health care provider, to encourage those employees to voluntarily provide vaccine documentation or other confirmation of receipt. However, the EEOC takes the position that any vaccine information employers choose to collect from employees, like all employee medical information, must be kept confidential and stored separately from an employee’s personnel file.

Employers administering vaccines to their own employees may also offer incentives for employees to be vaccinated, but only so long as the incentives are not coercive. The EEOC’s latest release does not provide any further guidance as to what types of incentives will be considered coercive; it only notes that a “very large” incentive could make employees feel pressured to disclose protected medical information. Given the lack of clarity in the EEOC’s guidance, employers looking to implement a vaccine incentive program should proceed with caution and contact our Labor and Employment Practice Group for further assistance.

Other Considerations

Because the EEOC prepared its release before the Centers for Disease Control and Prevention issued updated guidelines for fully vaccinated individuals on May 13, 2021, the EEOC is in the process of considering whether any changes to its guidance are required. We will continue to monitor the EEOC’s releases and will provide an update if any changes are made.

Please note that although the EEOC answers COVID-19 questions from the perspective of the federal EEO laws, there are many other federal, state and local laws that may have differing and even more strict requirements. Our Labor and Employment Practice Group is available to assist employers with implementing vaccine mandates or incentive programs and can answer any specific questions regarding the EEOC’s guidance.

The EEOC’s full-length COVID-19 guidelines can be found here.

Authorship Credit: Brian Harris and Tali Knauer

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