On May 28, 2021, the EEOC issued updated guidance for employers related to COVID-19 vaccinations in the form of updated questions and answers on its site. The full update is available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. In the introduction to the updated guidance, the EEOC explicitly notes that the updated guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals such that we can expect additional updates in the near future.
The biggest takeaway from the updated guidance is confirmation from the EEOC that, subject to accommodations for individuals with disabilities or sincerely held religious beliefs, it is not a violation of federal EEO laws for employers to mandate vaccines for employees entering the workplace. This is the clearest position that the EEOC has taken on the issue to date and should provide employers additional assurance if they choose to mandate vaccinations. The guidance also provides details on how employees can request accommodations and what accommodations an employer might consider for those employees who are unable to be vaccinated.
The updated guidance also explains that information about an employee’s vaccination is to be kept confidential under the ADA, such that any documentation or confirmation of vaccination must be kept confidential and stored in a separate personnel file. However, requesting documentation or confirmation of a vaccination is not a disability related inquiry and, except in specific circumstances, HIPAA does not apply to employer requests for information about vaccination status. Finally, the guidance confirms that employers may offer incentives to employees to obtain vaccinations under a voluntary vaccination program but does little in the way of providing concrete guidance or examples of permissible incentives. Instead, the EEOC simply reiterated the otherwise applicable standard that any incentive must not be so substantial as to be coercive.
As the guidance makes clear, if you are considering implementing a COVID-19 vaccine mandate for employees or a voluntary incentive program, there are a number of obstacles to navigate. The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly and can help you formulate and communicate your plans to employees. If you have questions about COVID-19 vaccination mandates or incentive programs, please call Greg Currey at 410-522-1020.