The arrival of the Covid-19 vaccine has many employers struggling, yet again, to understand how this new development will impact their business.
One common question that has emerged is: “Can an employer require employees to get vaccinated before returning to work?”
According to the new guidance issued by the Equal Employment Opportunity Commission (“EEOC”) in May 2021, employers can legally require that employees get the COIVD-19 vaccine for employees re-entering the workplace- however, there are limitations.
While the available EEOC guidance supports a mandatory vaccine policy, there are limits that may be imposed by certain employment related laws and therefore, some very important considerations to be made when enforcing this kind of policy.
The EEOC is a governmental agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.
In the new guidance issued by the EEOC, there are several limits to consider when mandating vaccination:
1. Employers must provide a reasonable accommodation for employees who cannot get vaccinated for medical reasons or sincerely held religious beliefs. Reasonable accommodations for employees that cannot get vaccinated (in either scenario)may include requiring unvaccinated employees to wear a face mask, remaining at a social distance from coworkers or others while working, working a modified shift, periodically testing for COVID-19, being provided the opportunity to telework, or accepting a reassignment.
2. The EEOC also cautioned that “[e]mployers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving aCOVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” This means that mandatory requirements are susceptible to claims that the requirement has an unequal impact on, or disproportionately affects, certain protected groups(i.e., race, national origin, religion, age) because there may be greater barrier to vaccine access.
Employers may also have the ability to incentivize employees to get vaccinated, and provide proof that their families or household members have been vaccinated, without implicating the Genetic Information Nondiscrimination Act (“GINA”), which protects disclosure of family medical history. Employers can also offer onsite vaccinations to their employees’ family members/household.
However, there are also limitations to consider when incentivizing employees.
Employers cannot offer employee incentives to have family members or household members receive a vaccination onsite through the employer, as the prescreening process may amount to a prohibited disclosure of family medical history.
When it comes to evolving workplace restrictions, there are many factors to consider-including the impact on your business. Consider factors such as your industry, the type of work you do, and how you’ve been operating thus far. An accounting firm with remote workers may have more flexibility to offer than a manufacturing facility whose employees must be onsite to perform their job duties. Consider an approach that affords your organization the ability to continue operations while keeping your employees, customers, and the public safe.
This article is provided for informational purposes only and is not legal advice. Other federal laws, as well as state or local laws, may provide employees with additional protections. It will be important to consider and analyze each concern to determine the best course of action under the law. If you would like to take a deeper dive into what would work best for your business, please reach out. Moving forward into the next phase of this pandemic can be overwhelming and our team is here and ready to help you through it!