On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) posted updated and expanded guidance relating to COVID-19 and the workplace. According to the EEOC, federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.” Specifically, the guidance addressed:
- Federal EEO laws do not prevent employers from requiring employees on site to be vaccinated, as long as the employer complies with the reasonable accommodation provisions of the ADA;
- Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation of vaccine status obtained by a third party (not the employer);
- Employers that are administering the vaccine to their employees may offer incentives to be vaccinated but the incentives cannot be considered “so substantial as to be considered coercive”;
- Employers may offer information to employees and their family members intended to educate them about the vaccine.
Incentives based on vaccine status may not extend to the employee’s family members, as it would require the disclosure of a family member’s medical information.
When enacting a policy that would prevent an unvaccinated person access to the premises or giving incentives based on vaccine status, an employer must be sure to accommodate employees who may have a disability or sincerely held religious beliefs that would prevent them from being vaccinated. Such accommodations could include requiring unvaccinated employees to wear masks, practice social distancing in the workplace, or have the opportunity to work remotely.
The two most common incentive options include cash/gifts and paid time off. Also, some employers are looking to “incent” employees to get the vaccine by lowering their employee contribution amount if they show proof of vaccine status.
Before implementing any vaccine incentive program, employers should consult their legal counsel to ensure that they are within the proper guidelines required by the EEOC and the American Disabilities Act.