New vaccine mandates continue to be the focus of the EEOC guidance and headline news as the Delta variant continues to sweep the nation. Concerns grow over rising case numbers, hospitalizations and deaths. This week, news broke that President Biden was working with the Centers for Medicare & Medicaid Services (CMS) to mandate all nursing home facilities that receive Medicare or Medicaid funding vaccinate all staff members or risk losing that funding. It is unknown at this time what the mandate’s deadline might be, but it may be as early as next month.
The EEOC’s May 28, 2021, Guidance on COVID-19 and an accompanying Press Release summarizes the EEOC’s position that “no federal EEO law prohibited employers from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
This is a good time to brush up on what employers need to remember when implementing a mandatory COVID-19 vaccination program.
Provide Accommodations When Requested, If Feasible
The EEOC guidance provides that employers should grant employees reasonable accommodations due to disability, religious objections, or pregnancy. Employees who object to receiving the vaccine must request an accommodation from the employer, provide the reason the employee is making the request and any supporting documentation, as appropriate. Employers should then consider whether a reasonable accommodation can be made to allow the employee to continue working without receiving the vaccine. Examples of possible accommodations include requiring that the employee continue masking, social distancing, undergo periodic COVID-19 testing, or continue working remotely.
However, employers are not required to provide accommodations when it would pose an undue hardship on the company or when the employee’s objection to the vaccine poses a direct threat to the health in the workplace.
Consider Offering Incentives, But Keep Them Reasonable
The guidance also clarified that employers could offer incentive programs to entice employees to get vaccinated, as long as the incentives were not so valuable as to amount to coercion. So a couple of extra days of PTO, gift card, or cash? Yes. A boat, Rolex, or trip to the Maldives? Sadly, no.
Do Request Verification, But Keep it Confidential
Employers are legally allowed to request proof of vaccination from their employees without running afoul of the ADA’s restriction on disability-related inquiries. However, employers should limit their request to verification of receiving the vaccine without asking additional questions such as why an employee declined to be vaccinated. All documentation or other confirmation of receiving the vaccine is medical information and must be kept confidential and stored separate from the employee’s personnel file.
Bottom Line
Employer vaccine mandates have been blessed by the EEOC, upheld by federal courts, and seem poised to become the norm. However, employers still need to ensure their policies comply with the litany of laws governing vaccination programs.