EEOC Has Spoken: Employers Can Require COVID-19 Vaccinations
At long last, the EEOC (Equal Employment Opportunity Commission) has spoken. On 5/28/21, the EEOC addressed the issue of whether employers can require employees going to the office and interacting with others for business purposes to be vaccinated against COVID-19. It decided they can. Employers still need to be wary of making a blanket requirement, as the EEOC still requires people to honor its non-discriminatory purpose and does not allow employers to require individuals with disabilities or adverse religious beliefs to be vaccinated. Furthermore, the EEOC noted that because of where some people are located, they may face difficultly getting a vaccine, which may give rise to discrimination claims based on race, color, religion, sex, or national origin under Title VII, or age under the Age Discrimination in Employment Act (40+).
Accommodations and Undue Hardship
Employers may get around these requirements as they always have, by demonstrating that providing an accommodation to such individuals would pose an undue hardship on the company. The analysis for such a determination would vary based on whether the accommodation is for a disability or religion. "For example, as a reasonable accommodation, 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." EEOC Q/A. "Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion." EEOC Q/A.
Confidentiality
Employers should note that information about whether or not an employee is vaccinated constitutes protected medical information in the US. Therefore, such information cannot be disseminated and employers cannot require employees to disclose their vaccinating status to other employees or clients. This ADA confidentiality requirement applies regardless of where the employee has obtained their vaccination.
Contact us if you require further assistance determining how to handle your COVID vaccination requirements.
