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EEOC issues new guidance on COVID-19 vaccinations in the workplace

Hope Abramov May 31, 2021

The U.S. Equal Employment Opportunity Commission (EEOC) released new guidance on Friday, May 28, 2021, addressing COVID-19 vaccine issues in the workplace. This guidance clarifies some significant questions, including whether employers may mandate vaccinations for their employees and what kinds of incentives they may provide to vaccinated employees.

Mandatory vaccinations

The new guidance confirms that an employer may require all of its employees physically entering the workplace to be vaccinated for COVID-19. However, employers must still comply with their reasonable accommodation obligations under the ADA and Title VII for employees seeking an exemption from a mandatory vaccination program. The EEOC also advises employers to be mindful of whether certain groups of its employees may face greater barriers to receiving vaccinations than others and to make sure the program does not disparately affect any protected groups.

Reasonable accommodations

Employers mandating vaccinations for their workforce may be required to provide reasonable accommodations to some employees, exempting them from the policy either because of a disability or a sincerely held religious belief unless doing so would pose an undue hardship on the operation of the employer’s business or create a direct threat to the health of others. Reasonable accommodations may include requiring unvaccinated employees to continue wearing face coverings and observing social distancing and to receive periodic tests for COVID-19.

Vaccine incentives

Some employers have chosen to incentivize employees to receive vaccines rather than require them to do so. However, this has led to uncertainties regarding how much of an incentive may be offered and what proof employers may require employees to provide for an incentive. 

The EEOC’s new guidance clarifies that employers who are administering vaccines directly to their employees may offer vaccine incentives as long as the incentives are not coercive. Because an entity administering vaccines must ask certain disability-related screening questions, there is a concern that very large incentives could make employees feel pressured to disclose protected medical information.

However, employers who provide incentives to employees for showing proof of vaccination by a third party, but who do not administer the vaccines themselves, may provide larger incentives because they are not receiving any disability-related information from their employees. Employers offering incentives may require employees to provide proof of vaccination by a third party, either by providing documentation or certifying that they have been vaccinated. However, all employers must be careful to keep vaccination information confidential, including by ensuring vaccination information is kept separate from employees’ general personnel files. 

Employers should keep in mind that the EEOC’s guidance only covers federal EEO laws and that some state and local laws may place greater restrictions on an employer’s ability to mandate vaccinations in the workplace or provide vaccine incentives.

We are available to answer more specific questions on exactly how this guidance will affect your company’s vaccine-related policies and programs. If you have any questions, please feel free to call or e-mail your regular contact at Thompson Coburn.

Hope Abramov attorney in Thompson Coburn’s Human Resource practice group.