Today the EEOC published updated guidance to address questions it has received from employers about vaccines in the workplace. The guidance represents the first substantive update to the rules from the EEOC regarding the pandemic since December 2020.
Specifically, the new guidance states that employers may:
- Require all employees physically entering the workplace to be vaccinated for COVID-19, provided employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII;
- Offer incentives to employees who provide documentation that they have been vaccinated for COVID-19;
- Offer incentives to employees to obtain COVID-19 vaccinations in the workplace, if the employer is offering vaccinations, provided the incentives are not coercive; and
- Provide employees and their family members with information about COVID-19 vaccines and the benefits of vaccination.
The EEOC cautions that employees are required to answer pre-vaccination, disability-related screening questions, and therefore, very large incentives could cause employees to feel pressure to disclose protected medical information.
Employers should keep in mind that if they obtain vaccination information from their employees they must keep this information confidential pursuant to the ADA. In addition, other federal, state, and local laws may come into play regarding vaccinations for employers and employees; this guidance only addresses vaccine questions under equal employment opportunity laws, including the ADA and the Genetic Information Nondiscrimination Act (GINA).
With Connecticut and other states lifting many of the pandemic-related business restrictions over the last few weeks, employers now have the challenging task of balancing mask requirements, vaccinations, and other health and safety concerns. Further guidance from OSHA is anticipated over the next few weeks that may shed further light on how employers can manage these competing interests.
In the interim, employers should continue to exercise caution and seek guidance from counsel in making changes.