Rachel Felton, Attorney at Law

Rachel D. Felton


Posted on June 9, 2021

The Equal Employment Opportunity Commission (EEOC) has updated its December 16th guidance regarding COVID-19 vaccinations.

The EEOC’s new guidance seeks to clarify and reiterate some of the previously discussed technical assistance questions and answers.

Importantly, the guidance addresses concerns regarding mandatory employee vaccination and vaccination incentives in the workplace. The following is a brief breakdown detailing the specifics of both.

Mandatory Employee Vaccination

Federal EEO laws do not prevent an employer from requiring all employees in the workplace to be vaccinated against COVID-19.

The EEOC notes that accommodations must still be made for those employees with legitimate medical and/or religious reasons for not receiving vaccination subject to the principles of Title VII and the Americans with Disabilities Act (ADA). The ADA requires that employers offer accommodation, when possible, provided that doing so is neither significantly difficult nor costly. Before instituting a mandatory vaccination policy, employers should provide those responsible for implementing the policy (managers, supervisors, etc.) with clear information about how to handle accommodation requests.

Employers should also consider reasonable alternatives for unvaccinated employees entering the workplace like wearing a mask, socially distancing from coworkers, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework, or accepting reassignment.

Questions regarding vaccination status and proof of vaccination are permissible. Further inquiries into why an employee has not been vaccinated or whether an employee has suffered side effects from the vaccine should be avoided as these questions run the risk of revealing protected medical and disability information.

Vaccination Incentives

As for vaccination incentives, the guidance provides two options:

  1. If employees get vaccinated from a third party and provide documentation, the employer may offer any incentive with seemingly no limitations. The EEOC defines third parties as individuals or institutions not acting as an “agent” of your organization. Examples include pharmacies, public health departments, and other health care providers in the community. Providing an onsite nurse or onsite medical staff for vaccination at the workplace does not qualify as third party.
  2. If an organization administers the vaccine themselves, offered incentives cannot be so substantial in value as to be considered coercive. Given that vaccination requires employees to answer specific pre-vaccination disability-related screening questions, too large an incentive has the potential to pressure employees to disclose protected medical information. This situation can be avoided by deferring to the previous option.

Accommodations must again be considered on the part of the employer for those employees with legitimate medical or religious reasons for not getting vaccinated. Alternatives by which an employee can earn an incentive if they cannot be vaccinated for medical/religious reasons may include watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in the workplace.

Whether your company elects to mandate vaccination or provide incentives, it is important to note that information gathered from all employees regarding vaccination must remain confidential. Records should be maintained in the same fashion and compliance as other medical-related documentation.

This post was written by Rachel Felton

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