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EEOC Issues New FAQs on COVID-19 Vaccine Programs and Incentives

The Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 frequently asked questions (FAQs) to address mandatory and voluntary vaccine policies and whether employers may offer incentives for employees and their family members to receive vaccines. As noted below, this new and updated EEOC guidance at Section K of the FAQs clearly endorses vaccine mandates and incentives under federal law (subject to certain conditions), but employers should take note that such programs may not be permissible under state or local law (see FAQ Section K introduction). Employers that are subject to the Americans with Disabilities Act (ADA) should not only become familiar with these FAQs, but also review the EEOC’s full guidance and other applicable laws with their labor/employment advisers.

Some highlights from the EEOC FAQs are as follows:

Employers May Provide Information and Voluntary Vaccines

  • Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination, and the FAQs highlight federal government resources available to those seeking more information about how to get vaccinated.

  • Employers may offer to provide vaccinations to employees on a voluntary basis.

Employers May Mandate Vaccines for Employees

  • Employers may require employees who will be physically entering the workplace to be vaccinated, as long as certain requirements are met. The new guidance prohibits a blanket policy excluding unvaccinated employees from the workplace on the basis that they pose a direct threat to the workplace.

  • Employers with mandatory vaccination programs must provide reasonable accommodations for individuals who refuse the vaccine due to disability, pregnancy or religion.

Employers May Offer Incentives to Employees

  • Employers may offer incentives to employees who provide documentation of receiving the COVID-19 vaccine outside of work (as requesting proof of vaccination “is not a disability-related inquiry” or an “unlawful request” under federal anti-discrimination laws).

  • Employers may offer incentives for employees to receive COVID-19 vaccinations, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.

Employers May Encourage Family Member Vaccinations

  • Employers may encourage employees and their family members to receive a vaccination without violating federal EEOC laws (subject to certain conditions), but an employer may not require or provide incentives for family members’ vaccination when the employer or its agents are providing the vaccination.

Employers May Ask for Documentation from Employees

  • Employers may request or require documentation as part of their workplace vaccination policies and programs, but must keep documentation concerning proof or confirmation of vaccination confidential because it is a medical record subject to the strict confidentiality requirements of the ADA.

These new and updated FAQs were much needed for the business community as they clarify the types of programs employers may design to address employee COVID-19 vaccinations. They also clarify the extent to which employers may require or provide incentives for employees or employees’ family members to receive vaccines. Employers should also be sure to follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC), and any applicable state or local health agencies.

Employers should watch for any further developments related to the EEOC and state and local rules and review their vaccine programs with labor counsel as certain of these programs could open them up to discrimination claims. Please contact your Conner Strong & Buckelew account representative toll free at 1-877-861-3220 with any questions. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.


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