As a healthcare and business law firm, we work with many employers and employees to navigate complex employment matters, oftentimes with an eye towards federal employment regulations. The COVID-19 pandemic has impacted employment in the United States. Now that the Country is reopening and people are returning to work, a question on everyone’s mind is: “Can my employer require me to get the vaccine”? The Equal Employment Opportunity Commission (“EEOC”) recently released guidance answering that question. This post intends to outline the EEOC’s position; it does not address the potential impact of state and local rules on this topic. If you have questions regarding this blog post, employment matters, or EEOC rules and regulations, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com
The EEOC Hearing
To assist in developing its guidance, on April 28, 2021, the EEOC held a hearing to discuss the impact of the pandemic on workplace civil rights. During the hearing, the EEOC heard from experts in economics, policy, disability rights, and many more. The hearing transcript and audio is available here. It may be important going forward to consider that the EEOC hearing was held before the CDC issued new guidance on May 13th pertaining to fully vaccinated individuals.
The EEOC’s Guidance
In Spring of 2020, the EEOC issued guidance entitled “What You Should Know About COVID-19, the ADA, the Rehabilitation Act, and Other Laws.” On November 3, 2020, we published a blog analyzing the EEOC’s guidance regarding an employer’s right to telework as a reasonable accommodation. The EEOC has updated this guidance as the pandemic’s impact evolved. The EEOC made its most recent amendments on May 28, 2021, implementing many updates considered during the April 28th hearing. The key takeaways from the guidance are as follows:
- Requiring Vaccination: Federal EEO laws do not make it unlawful for an employer to require employees who enter the job site to be vaccinated. Of course, federal disability laws apply, such as the ADA, which require employers to offer employees with disabilities reasonable accommodations in certain circumstances. Employers should keep in mind that there may be realistic barriers for certain demographics of individuals receiving the vaccine. Other non-discriminatory laws may be triggered when the policies in effect may have a disparate impact on specific demographics. As such, employers must consider and evaluate many factors prior to implementing broad policies.
- Requesting Proof: Federal EEO laws do not make it unlawful for an employer to incentivize an employee to voluntarily offer proof of his or her vaccination. If vaccination information is obtained, however, to comply with the ADA and other rules, the employer must keep the information confidential.
- Employer-Offered Vaccinations: Some employers are offering vaccines to their employees. To do so requires the employer to receive certain protected medical information from its employees. Employers can also offer incentives to their employees to receive the employer-offered vaccine but offering incentives should be done considering the following: If the incentives are too large and enticing, it could appear as coercive, which in effect would amount to the employer coercing its employees to divulge protected medical information. Employers offering the vaccine to its employees should consider this when developing incentives.
Although the EEOC has conveyed its stance that employers may require employees to be fully vaccinated before returning to work, this post addresses some important realities employers must consider before implementing vaccination policies. If you have questions regarding this blog post, employment matters, or EEOC rules and regulations, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.