The last 18 months has been difficult for most organizations, while navigating uncharted territory that coincided with COVID-19. With vaccinations widely available to most individuals who would like to receive one, the light is finally at the end of the tunnel. But what does that mean for organizations looking to bring their staff back to the office? The EEOC weighed in with some updated guidance at the end of last month. Here are some highlights of EEOC guidance on key employer vaccination questions.
Can an employer require an employee to be vaccinated? And can they require proof of vaccination?
The short answer to both is yes. Federal law does not prohibit an employer from requiring vaccines, subject to reasonable accommodations for disabilities and other EEO considerations, such as religious beliefs. Also, employers can ask for proof of vaccination status since it is not a disability-related inquiry.
Can employers offer incentives to employees, who provide valid proof of vaccination?
Yes. If the employee is vaccinated by a third-party, the size of the incentive is not regulated. However, if the employer is providing the vaccine, the incentive should not be so substantial as this could easily be construed as coercive.
Is information about an employee’s COVID-19 vaccination status confidential medical information?
Yes. Information for any vaccine that an employee has received, along with all other medical information, must be kept confidential and stored separately from the employee’s personnel files to remain compliant with the ADA regulations.
Employer vaccination requirements and reasonable accommodations
An employer can require employees entering the workplace to be vaccinated. The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodation and considerations. However, as with any employment policy, the EEOC does state that it is unlawful to apply a vaccination requirement in a way that treats employees differently based on any protected status, unless there is a legitimate non-discriminatory reason.
With any vaccination requirement, there will also be accommodations to the rule as well. Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of belief or disability, do not get vaccinated for COVID-19. These individuals may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. Here are some reasonable accommodations the EEOC suggests:
- Require the unvaccinated individual to wear a face mask.
- Require social distancing from other co-workers or non-employees.
- Unvaccinated individuals can work a modified shift.
- Require periodic COVID-19 testing for unvaccinated individuals .
- Offer the opportunity to work remotely (if possible).
Individuals who cannot receive the COVID-19 vaccination due to disability must let their employer know of the need for an exemption from the requirement or a reasonable accommodation. Once an accommodation request is made, employers and employees typically engage in a flexible, interactive process to identify workplace accommodation that does not impose an undue hardship.
Employers may also run into scenarios of individuals who are fully vaccinated for COVID-19 but are still requesting accommodations due to an underlying disability, and heightened risk of severe illness from COVID-19, despite being vaccinated. Employers that receive these requests should process the request in accordance with applicable ADA standards for evaluating potential reasonable accommodations that may be provided absent undue hardship.
Title VII and COVID-19 Vaccinations
If an employer is notified that an employee’s sincerely held religious beliefs prevent the employee from getting the COVID-19 vaccination, the employer must provide a reasonable accommodation, unless it would pose an undue hardship. Employers should thoroughly consider all possible reasonable accommodations, including remote work, and reassignment. For the purposes of accommodating religious beliefs, the courts define “undue hardship” as having more than minimal cost or burden on the employer. This is a lower standard for employers to meet than the ADA’s undue hardship standard, which applies to disability accommodation requests.
The EEOC does suggest that while an employer should ordinarily assume that an employee’s requests for religious accommodation is based on a sincerely held religious belief, if an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.
COVID-19 Vaccinations – A Recent Newsworthy Headline
A hospital in Houston, Texas, is making headlines for a vaccine mandate that over 100 employees have filed a class-action lawsuit for. The hospital system has a mandatory COVID-19 vaccination policy for all employees. Southern District of Texas Judge Lynn Hughes made his decision just days after the hospital suspended 178 workers for not getting vaccinated by a June 7th deadline, and his decision sides with the hospital’s mandate.
Judge Hughes advised that the hospital system’s policies were not coercion against staff, they were a choice the hospital system made “to keep staff, patients, and their families safer.” Judge Hughes also said those who refused vaccinations will need to work somewhere else.
The hospital has defended its policies, saying mandatory employee vaccination was critical for patient and worker safety. The policy included exemptions on religious and medical grounds. In a decision at the time, Judge Hughes wrote the plaintiffs were “not just jeopardizing their own health; they are jeopardizing the health of doctors, nurses, staff, patients and their families.”