On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers (Technical Assistance) about COVID-19 and Equal Employment Opportunity laws, including the Americans with Disabilities Act (ADA). In the Technical Assistance, the EEOC addressed many questions concerning the right of employers to screen for COVID-19 and/or for symptoms of COVID-19. Much of the Technical Assistance had been previously published but on May 28, the EEOC updated its answers to many of the questions. One question which had not been clearly answered by the EEOC until the Technical Assistance came out was whether an employer can require all employees physically entering the workplace to be vaccinated for COVID-19. This question was added in the May 28, 2021 version of the Technical Assistance.
The EEOC stated that federal Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodation provisions. Attorneys have been advising clients for many months that it is permissible to enact a mandatory vaccination policy, and the May 28 Technical Assistance confirmed the lawfulness of such a policy. The purpose of this article is not to discuss reasonable accommodation although obviously, it is an important concern if an employer mandates that all employees must be vaccinated. A mandatory vaccination policy must allow for exceptions if an employee is suffering from a medical condition that prohibits the employee from being vaccinated, or if an employee has religious objections to being vaccinated. Rather, this article will discuss a few issues that we have seen with respect to vaccinations.
In the updated Technical Assistance, the EEOC also stated that employers can encourage employees and their families to get vaccinated, without violating any discrimination laws. Again, employers have been offering such incentives for many months, but the updated Technical Assistance provides additional regulatory support for this position. It is also lawful for employers to provide educational information to employees to address concerns about vaccinations, and to raise awareness of the advantages of being vaccinated.
Is it legal to ask employees for documentation that they received a COVID-19 vaccination?
Normally, it is unlawful for an employer to make inquiries concerning an employee’s medical treatment or condition, unless such an inquiry is job-related and consistent with business necessity. However, the updated Technical Assistance makes it clear that when an employer asks employees whether they obtained a COVID-19 vaccine, the employer is not asking a question that is likely to disclose the existence of a disability. Thus, requesting documentation of vaccination is not a disability-related inquiry under the ADA. Employers should not forget that vaccination documentation is medical information about an employee and must be kept confidential.
Can an employer publicize which employees have not been vaccinated?
The Technical Assistance provides that information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. Employers must keep this information confidential, as they would any other medical information. Employers cannot publicize who has and has not been vaccinated.
What can an employer do if an employee refuses to be vaccinated?
Employers are struggling with the proper way to handle an employee who refuses to be vaccinated and is not refusing because of a medical condition or a religious objection. Many companies, particularly those which interface with the public, want the public to know that employees have been vaccinated and it is safe to be in physical contact with their employees. Some companies, faced with the knowledge that a significant number of employees will refuse to be vaccinated, have offered incentives to motivate employees to be vaccinated, and education about the risks associated with COVID vs. the benefits of being vaccinated.
Suggestions for dealing with employees who are not vaccinated:
- Implement alternative work situations for those employees who are not vaccinated. An example is to stagger employee schedules so that employees who work in close proximity are not in the office on the same days.
- Allow employees who are not vaccinated to continue to work from home.
- Continue to require social distancing.
- Require that all employees wear masks, or request that unvaccinated employees wear a mask.
Just last week, a client called asking what to do with a minor rebellion he was encountering where many unvaccinated employees were refusing to wear masks. This employer requires that all employees wear masks. He asked what he could do? We told him that, assuming the employees are not refusing to wear a mask because of a medical condition or religious objection, the employer can terminate the employees for refusing to wear a mask.
What if vaccinated employees feel uncomfortable being exposed to unvaccinated employees?
The General Duty Clause of the Occupational Safety and Health Act requires that an employer provide employees with a work environment free of recognized hazards that are causing or likely to cause death or serious physical harm to employees. If an employer fails to take precautions to protect employees from the risk of exposure to an unvaccinated employee, they could be violating the General Duty Clause. Therefore, we recommend that employers continue to require that unvaccinated employees wear masks and that social distancing continue to be enforced. In addition, the employer should consider the alternatives discussed above. These actions will help demonstrate the concrete steps an employer has taken to protect workplace safety.
What is an employer’s obligation to unvaccinated employees being harassed by other employees?
If an employer does not mandate that all employees be vaccinated, the employer should make sure that unvaccinated workers are not harassed or made to feel isolated. It is permissible to offer incentives to employees who voluntarily receive a COVID-19 vaccination. The incentive should not be so substantial that it is deemed to be coercive. Employers should be cautious about conditioning access to training, career development activities, or other work-related events, on being vaccinated. Employers should enforce their policies concerning harassment, bullying, respect and civility when unvaccinated employees are harassed or mocked because they are unvaccinated.
As COVID case numbers are going down, and government agencies are reducing mask and social distancing requirements, employers are grappling with how to bring employees back to work, and what COVID health and safety rules will be applied to the workplace. Whether to require that employees be vaccinated is one of the challenging questions for all employers. The EEOC, the CDC, and state and local governments are loosening up the requirements and giving businesses more flexibility in what they can demand of their employees. In making these important decisions, employers must balance safety, employee preference, and the impact of mandating vaccinations.