EEOC Issues Updated Guidance Regarding Vaccinations and Vaccine Incentives

On Friday, May 28, the Equal Employment Opportunity Commission updated its COVID-19 Question and Answer page to address a number of questions related to COVID-19 vaccinations.  Regarding whether employers can mandate vaccinations, the EEOC addressed the question of whether employers can require employees to be vaccinated for COVID-19.

The EEOC’s guidance on the topic of vaccination begins by broadly stating that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA…”  The EEOC notes that the reasonable accommodation provisions of Title VII and the ADA may require employers to excuse employees from the vaccination requirement if they object to the vaccine because of a disability or a sincerely held religious belief.

The EEOC does provide a number of additional caveats, including:

• Employers may need to consider whether a vaccine requirement may have a disparate impact on — or disproportionately excludes — certain protected classes of employees (for example, based on race, color, religion, sex, or national origin).
• Employers cannot apply the vaccination requirement in a way that treats employees differently based on protected characteristics.

On the topic of incentives, the EEOC guidance states that employers can provide employees with an incentive to receive a vaccination.  If the employer is providing the vaccine to employees, the incentive cannot be so great as to count as “coercive.”  The EEOC did not elaborate on what amount of incentive might qualify as “coercive.”   If the employees receive the vaccine from a third party, this limit does not apply.  The EEOC said that an incentive can include “both rewards and penalties.”

The EEOC states that employers can also request documentation or other confirmation that an employee received a COVID-19 vaccination.  Employers are also permitted to provide incentives to encourage employees to voluntarily provide such information.

The EEOC says that federal law prohibits an employer from offering an incentive to an employee in return for the employee’s family member getting vaccinated by the employer.  On the other hand, the EEOC says that federal law does not prohibit employers from offering the vaccine to an employee’s family member without offering an incentive to the employee, provided the employer takes certain steps (such as getting an authorization from the family member ahead of time and keeping their information confidential).

The EEOC also updated its answers to several additional questions in the FAQ document. The entire EEOC Question and Answer page can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws