Employers May Require or Incentivize COVID Vaccinations

Recent guidance issued by the Equal Employment Opportunity Commission addresses COVID-19 vaccines in the workplace. The agency first clarified that employers may generally require all employees who physically enter a jobsite to be vaccinated against COVID-19. However, employers must take into account the Americans with Disabilities Act (ADA) and Title VII, which require an employer to make reasonable accommodations for an employee who cannot get the vaccine due to a disability or a sincerely held religious belief. In order to be “reasonable,” an accommodation must not pose an undue hardship on the operation of the employer’s business. Examples of reasonable accommodations for unvaccinated individuals may include wearing a face mask, maintaining social distance from others, working a modified shift, getting periodic COVID-19 tests, or teleworking.

Employers may also offer incentives to employers who voluntarily become vaccinated. If a third-party (such as a pharmacy or clinic) provides the vaccine and the employee provides proof of the vaccination to the employer, the employer must keep that vaccination information confidential in order to comply with the ADA. If the employer is administering the vaccine to employees, the employer must make sure that the incentive offered is not too substantial to be considered coercive. Because vaccinations require employees to answer disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information to employer, which would violate the ADA.