New EEOC Guidance Clarifies Employer Obligations re: Vaccination Programs


The Equal Employment Opportunity Commission (EEOC) recently released new guidance regarding employment vaccination programs.  The EEOC reiterated that federal law allows employers to require that all employees physically entering the workplace be vaccinated for COVID-19.  Other notable points from the new guidance include:

  • When imposing a mandatory vaccine requirement, employers must still consider reasonable accommodations to employees with medical or religious objections. In its guidance, the EEOC provided examples of reasonable accommodations that do not pose undue hardships to employers.  For example, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment. 
  • The EEOC clarified that employers may offer incentives for employees to receive vaccinations. For vaccination programs administered by the employer or its agent, incentives (including both rewards and penalties) may not be so substantial as to be coercive.  This same limitation does not apply, however, where employees receive their incentive from an unrelated third party (e.g., at a city clinic).  In that case, an employer has greater latitude in providing an incentive. 
  • The EEOC restated that employers who administer vaccines in the workplace must ensure that mandatory and/or voluntary pre-vaccination inquiries are justifiable under the ADA. The agency also reminded employers that all employee medical information, such as documentation or other confirmation of COVID-19 vaccination, must be kept confidential and stored separately from employee personnel files.
  • Finally, the EEOC indicated that employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, age, pregnancy status, or national origin. The EEOC specifically reminded employers to keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

Federal guidance on COVID-19 vaccination issues is complex, and states and localities may have different requirements.  If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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