On May 28, the U.S. Equal Employment Opportunity Commission (EEOC) released long anticipated guidance regarding mandatory employer vaccination policies. The updated guidance confirms that, at least under federal anti-discrimination laws, an employer may lawfully require all employees physically entering the workplace to be vaccinated for COVID-19, as long as reasonable accommodations are considered for those who cannot get vaccinated due to a medical disability or sincerely held religious belief.
The EEOC provides a list of specific accommodations that an employer could provide to such employees that likely would not pose an undue hardship on business operations, including requiring employees who are unvaccinated due to medical or religious reasons to wear face coverings at the worksite, maintain social distance from co-workers, work modified shifts, get periodic tests for COVID-19, work remotely, or even accept a reassignment. Employers are advised to consider all options before denying an accommodation request.
The commission also cautions that a mandatory vaccination policy could potentially have a disparate impact—or disproportionally exclude—employees based on protected characteristics such as race, national origin, or religion. Because some individuals or demographic groups may face greater barriers accessing vaccination than others, a vaccine requirement could negatively and disproportionately affect marginalized groups. Employers planning on implementing vaccination requirements only for certain high-risk employees, such as the cleaning staff or cafeteria workers, should be especially attentive to any disproportionate effects.
The EEOC also confirms that employers may offer incentives to employees to get vaccinated in lieu of a mandate to do so. Prior to this update, there was uncertainty regarding whether an incentive program would unlawfully discriminate against employees who could not get vaccinated. The EEOC further clarified, however, that, when an employer is administering vaccines to employees on-site, the employer may not provide incentives that are so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
Although employers may ask for proof of vaccination, an employee’s vaccination status, like all medical information, must be kept confidential and stored separately from the employee’s personnel files. It is unclear whether a vaccination card would be considered a medical record triggering retention obligations, so employers that require proof of vaccination should consider having employees present their vaccination card—or a digital picture of the card—rather than submit it for collection. This could be done either by having the employee show a manager or HR representative the card in person or by showing it remotely over a video call.
The guidance is also notable for what it does not include. The updated recommendations were prepared prior to the CDC’s new guidance for fully vaccinated individuals issued on May 13, 2021. The EEOC stated that it is currently considering the CDC guidance and will provide additional updates as needed. Additionally, the EEOC specifically notes that it is beyond the commission’s jurisdiction to discuss the legal implication of the available COVID-19 vaccinations having been granted only Emergency Use Authorization from the FDA. There are a number of pending lawsuits challenging mandatory employer vaccination policies on this basis.
The WilmerHale employment group will continue to follow these developments and is able to provide tailored advice to employers seeking to implement vaccination policies and other return-to-office protocols.
