August 6, 2021

Just as employers were settling into a remote work environment, they are now transitioning employees back to in-person work, which means making decisions regarding workplace expectations related to the COVID-19 vaccination. The Equal Employment Opportunity Commission (EEOC), the federal agency which has provided significant guidance regarding workplace protocols during the pandemic, has recently updated its guidance regarding mandatory vaccines. Using this guidance, employers can move forward with their return to work policies.

Mandatory Vaccinations

According to the EEOC’s guidance, employers may:

• Require employees to be vaccinated;
• Ask if employees have been vaccinated;
• Require employees to show proof of vaccination.

There are, however, some caveats to consider.

• An employer’s obligation to provide reasonable accommodations to employees with disabilities, under the Americans with Disabilities Act (ADA), must still be evaluated. Thus, if employees claim they cannot be vaccinated because of a disability, employers should engage in the “interactive process,” i.e., have a discussion with the employee and determine whether the employee is entitled to protections under the ADA and whether a reasonable accommodation can be provided. In the context of mandatory vaccines, the EEOC has suggested that a reasonable accommodation might include a requirement that the employee wears a mask, works in an area that is socially distant, works a modified shift, or periodically gets tested for COVID-19. According to the EEOC guidance, pregnant women who do not want to be vaccinated may also be exempt from a mandatory vaccine requirement.
• If an employee advises that they cannot be vaccinated because of a sincerely held religious belief, practice, or observance, an employer must engage in the interactive process and determine whether the employer can provide the employee a reasonable accommodation that does not create an undue hardship.

As with all reasonable accommodation evaluations, employers must look at each situation on a case-by-case basis, including an evaluation of the workplace needs and whether the accommodation will pose an undue hardship.

Though mandatory vaccination policies are permissible, employers should remember that some individuals may have a more challenging time accessing a vaccination appointment.

Confidentiality Issues and Incentives to Employees

Because the EEOC has stated that inquiries about vaccinations are not disability-related inquiries (which would ordinarily violate the ADA), employers may ask employees if they have been vaccinated and provide proof of vaccination. However, if an employer maintains employee information regarding vaccinations, the employer must treat that information confidential as they would with any other employee medical record.

If an employer chooses to offer on-site vaccinations, they should be mindful that any pre-vaccination information gathered may include confidential medical information, which will trigger other ADA requirements.

Employers may also offer employees incentives to become vaccinated, including, for example, paid time off or one-time cash payments. However, the EEOC cautions employers not to provide incentives that may be considered coercive.

Training

Even if an employer has created a proper policy regarding mandatory vaccines, an employer may face legal challenges if supervisors and managers are not properly trained. Employers need to ensure that all such employees, especially those who have the authority to discipline or terminate, understand these caveats to mandatory vaccinations.

What’s to Come?

On June 12, 2021, a federal court in Texas issued the first decision regarding a mandatory vaccination policy. In this case, the plaintiff claimed the policy was unlawful and that the employee was wrongfully terminated for refusing to become vaccinated. The Court did not agree. Relying upon the EEOC’s current guidance, the Court held that an employer may require emergency-use vaccination and that termination for failure to comply was not coercion.

While this is the first of what will likely be many cases, the rules and expectations regarding COVID-19 are constantly changing. Even the EEOC warns that employers should regularly check the EEOC website for updated guidance. Additionally, employers should remember that other laws not in the EEOC’s jurisdiction may place additional restrictions on an employer’s rights and obligations.

If you would like to discuss return to work or other employment-related issues, please contact the Scopelitis labor and employment team.