As more Americans get inoculated with the COVID-19 vaccine, employers are wondering where they stand legally on requiring workers to get vaccinated, asking them whether they have been vaccinated and providing incentives for employees to get inoculated.
On May 28, the Equal Employment Opportunity Commission updated its COVID-19 vaccination guidance to help employers navigate this risk-fraught territory. The following are the highlights:
Employers may require vaccinations
The EEOC restated its earlier guidance that employers can require staff who enter their worksites to be vaccinated, as long as they can provide reasonable accommodations for workers with disabilities or who hold sincere religious beliefs that prohibit them from getting vaccines.
If one of your employees requests accommodation, you need to enter into the interactive process to come to a reasonable solution. Such accommodations could include:
- Requiring unvaccinated workers to continue wearing facemasks in the workplace,
- Letting them work modified shifts,
- Allowing them to work from home, or
- Requiring them to undergo regular testing for the coronavirus.
Despite this guidance, many employment law firms have recommended against mandating vaccinations unless it's a business necessity. Even if you have legal grounds to back up your decision, you can still be sued and incur legal fees even if you eventually win.
Employers can ask staff if they are vaccinated
The EEOC's guidance also states that employers can ask their workers if they are vaccinated, and that doing so would not run afoul of the Americans with Disabilities Act (ADA).
That said, the agency said employers should not ask employees who report not getting the vaccine why they didn't do so as it could result in them revealing any underlying conditions, which in turn could increase the risk of being sued for disability discrimination if the worker experiences an adverse action by management in the future.
Also, there are state laws that employers would have to contend with in terms of employee data privacy.
For example, the California Consumer Privacy Act requires covered employers to provide written notice of the CCPA and the company's CCPA-compliant privacy policy before collecting any personal data. Other states are considering similar legislation.
Additionally, there are data security laws. It's important that employers that collect vaccine data comply with those laws' storage securitization requirements and are aware of their notification responsibilities in states where vaccination status data is considered "personal information."
Vaccination status is confidential
While the EEOC says employers are authorized to ask about vaccination status, the information they collect is confidential.
That means vaccination information needs to be stored separately from the worker's personnel files and treated as confidential information under the ADA.
Vaccination incentives are okay
The guidance states that employers may offer incentives to employees who voluntarily get vaccinated. That could include gift cards, vouchers, cash and other methods.
The EEOC said incentives do not violate the ADA or the Genetic Information Nondiscrimination Act (GINA).
The takeaway
The EEOC's guidance should be viewed in light of federal and state laws, as well as the potential for legal action by employees who may object to a mandatory vaccination policy. Even if you win the case or successfully have it thrown out of court, you'll still incur legal fees in defending the case.
If you are considering mandatory inoculation, vaccination incentives and/or plan to ask staff if they have been vaccinated for COVID-19, you should read the EEOC's guidance carefully. You will need to have safeguards in place that comply with the ADA, GINA and other federal and state laws.
If you plan to offer vaccines to employees, consider limiting pre-screening questions to the Centers for Disease Control's Pre-vaccination Checklist.
Also make sure to keep confidential any COVID-19 vaccination and other medical information your employees provide you separately from employee records.
Finally, if you are planning incentives for getting vaccinated, make sure the policy reflects employee rights under federal and state laws. Give us a call if you have any questions.