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5 Takeaways from EEOC Update to Employer Vaccination Guidance

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance regarding the 2019 novel coronavirus (COVID-19) vaccinations of employees. The following are five key takeaways for employers:

1. Mandatory vaccines are a-ok 

The EEOC has doubled down and reiterated that employers may require employees entering the workplace to be vaccinated provided that employers provide reasonable accommodations to employees with underlying disabilities, or for sincerely-held religious beliefs, that preclude vaccination. If an employee requests an accommodation, employers should engage in the interactive process. The EEOC provides a list of possible reasonable accommodations an employer could provide under such circumstances, such as asking unvaccinated employees to continue to wear a face mask, providing modified work shifts, requiring periodic testing for COVID-19 or providing the opportunity to telework.

The EEOC advises that when addressing an employee’s request for a religious accommodation an employer should ordinarily assume that an employee’s request is based on a sincerely-held religious belief absent an “objective basis” for questioning the religious nature or sincerity of the particular belief. Such guidance is sufficiently vague, and employers should consult with legal counsel if they are considering requesting additional documentation to substantiate a sincerely-held religious belief.

2. Ask away!

The EEOC similarly emphasized that employers may ask employees if they are vaccinated or not under the Americans with Disabilities Act (ADA). But, be aware of key legal considerations before you do

3. Vaccination status: Confidential

Vaccination status is confidential medical information according to the EEOC. As a result, vaccination status documentation should be stored separately from the employee’s personnel file and otherwise treated as confidential information under the ADA.

4. Vaccination card giveaways

Much like Krispy Kreme handing out donuts to patrons who show proof of vaccination, employers may offer incentives to employees for voluntarily providing documentation or other confirmation that they or their family members were vaccinated. According to the EEOC, such programs do not violate the ADA or the Genetic Information Nondiscrimination Act (GINA).

5. Vaccine incentives roll-out

The EEOC stated that employers may offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, as long as the incentive is “not so substantial as to be coercive.”  Notably, the EEOC clarifies that “incentives” includes both rewards and penalties. As the EEOC explained, “[b]ecause vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.” Employers have begun considering and implementing additional days of paid time off, gift cards and other incentives to promote vaccination among their workforces since the CDC issued its latest guidance for fully-vaccinated individuals.

Importantly, under GINA, employers may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent.

Copyright © 2023 Godfrey & Kahn S.C.National Law Review, Volume XI, Number 152

About this Author

Rebeca Lopez, Labor & Employment Attorney with Godfrey Kahn

Rebeca Lόpez is an associate in the Labor, Employment & Immigration Practice Group in the Milwaukee office.

Sarah Mueller Employment Lawyer Godfrey Kahn

Sarah Mueller is an attorney in the Labor, Employment & Immigration practice group. Sarah’s practice focuses on advising clients on a wide variety of day-to-day employment matters, including administering federal and state family and medical leave laws, disability accommodations, and wage and hour matters.

Prior to joining Godfrey & Kahn, Sarah was a Judicial Intern for the Wisconsin Court of Appeals. While in law school, Sarah served as a Comment Editor for the Marquette Law Review. Sarah also served as a leader for Marquette University Law School’s Academic Success Program...