According to the Centers for Disease Control and Prevention (“CDC”), approximately 50% of Americans over the age of 12 have received one dose of the COVID-19 vaccine.1 The CDC recently issued guidance that “fully vaccinated” people no longer need to wear face coverings and may resume normal activities without physically distancing, “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”2
Despite that change, employers remain in a position of deciding whether to mandate vaccinations for employees as a condition of continued employment. On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”3 This update should give employers additional comfort should they elect to institute mandatory vaccination programs for their employees.
The recent update to the EEOC’s COVID-19 guidance states:
- The federal EEO laws do not prohibit an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII (for sincerely held religious beliefs or practices) and the ADA (because of a disability).
- Employers may be able to claim that providing an accommodation would pose an undue hardship on the operation of the business.
Although the EEOC’s recent guidance appears to provide employers protection for requiring COVID-19 vaccines, there is remaining uncertainty about mandating vaccines that were authorized under an Emergency Use Authorization (“EUA”). The EEOC withheld comment on this issue and instead directed employers to review the FDA’s website.4 Nonetheless, the EEOC has confirmed its position that the federal laws within its purview (Title VII, ADA, ADEA, GINA) do not prohibit employers from mandating vaccines.
The following are a few other important takeaways from the EEOC’s May 28, 2021 guidance:
- Before instituting a mandatory vaccination policy, employers should provide managers and supervisors with clear information about handling accommodation requests.
- Employers must engage in the interactive process if an employee requests reasonable accommodation.
- Employers may ask whether an employee has been vaccinated. If the employee indicates that the employee is not vaccinated, the employer should not ask the employee why the employee is not vaccinated.
- Employers are required to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination.
When considering whether and how to implement a mandatory policy, employers should consider the culture and needs of their workplace and whether a voluntary policy or incentives can accomplish similar results. Please contact your attorney at Henson Efron to discuss the options available to you.
The purpose of this article is merely to provide general information and should not be construed as legal advice on any specific set of facts or circumstances. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.