Just before Memorial Day, the Equal Employment Opportunity Commission (“EEOC”) published new guidance addressing questions regarding employer vaccination programs.

The newly-issued FAQs address several topics related to COVID-19 vaccination programs, including whether employers can require the vaccine as a condition of employment, what incentives can be offered to get employees vaccinated, and how employee vaccination records must be treated by employers. The EEOC’s answers to these questions are highlighted below.

Q: Can a Contractor Require COVID-19 Vaccination as a Condition of Employment?

A: Yes 

In response to the question, “[M]ay an employer require all employees physically entering the workplace to be vaccinated for COVID-19?” the EEOC responded that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” with the caveat that employers must still accommodate employees’ disabilities and sincerely held religious beliefs which prevent them from complying with a vaccination mandate, unless doing so imposes an undue hardship or causes a direct threat.

Q: Can a Contractor Provide Incentives for Employees Who Get Vaccinated?

A: Yes 

In response to the question, “[M]ay an employer offer an incentive to employees for voluntarily receiving a vaccination . . .,” the EEOC answered “yes,” as long as the employer isn’t the one administering the vaccination. That is, as long as the employer is only offering an incentive for employees to provide documentation or other confirmation that they have received a vaccination (which, as the EEOC has previously noted, is not a “disability-related inquiry”) then offering an incentive is permissible.

If the employer or one of its agents is actually administering the vaccine (e.g., through an on-site vaccine clinic), then the EEOC notes that the practice is permissible, as long as “any incentive (which includes both rewards and penalties) is not so substantial as to be coercive,” and also noting that “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.”

Q: Is a Record of an Employee Receiving COVID-19 Vaccination Considered Confidential Medical Information under the ADA?

A: Yes 

Finally, the EEOC notes the following with respect to how employee vaccination information must be kept by employers:

The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Thus, if you are documenting employees’ vaccinated status, you must make certain that the information is kept in a confidential medical file – and not the employee’s regular personnel file.  Further, only those with a “need to know” of the employee’s vaccinated status (e.g., safety personnel, HR) can receive the confidential information.

Bottom Line

This newly-issued guidance provides answers to many important questions regarding COVID-19 vaccination programs in the workplace. The answers to these questions appear to indicate a favorable stance by the EEOC towards companies encouraging (or ensuring) that their employees are vaccinated, both under mandatory policies as well as through incentive programs.

Template COVID-19 Vaccination Policies

As COVID-19 vaccines become more readily available, some employers are considering vaccine policies to help their businesses and workplaces to slowly return to normal. While there are many considerations employers should take regarding implementation of these policies, FCA developed template policies (mandatory and non-mandatory) for those choosing to implement one. Click here to access.