EEOC Says Employers Can Mandate COVID-19 Vaccines, but Tread Carefully…
Approximately 50 percent of Americans age 12 and older have received one dose of the COVID-19 vaccine, and 40 percent are fully vaccinated now. Most recently, the CDC issued guidance that people who are fully vaccinated do not need to wear face coverings in most settings. Still, many employers (rightfully) are grappling with whether to mandate employee vaccination as a condition of employment. The Equal Employment Opportunity Commission’s (EEOC) May 28, 2021 guidance on mandatory employer COVID-19 vaccination programs should make employers feel more comfortable with mandatory vaccination programs for their employees.
The EEOC clarified its previously murky stance on this issue, expressly stating that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” as long as employers allow for reasonable accommodation of their vaccine mandate for medical or religious reasons. Like all requests for accommodation, employers may avail themselves of the “undue hardship” exception for denying an employee’s request for accommodation.
Even with the EEOC’s guidance, it remains unclear if vaccines authorized under an Emergency Use Authorization (EUA) may be mandatory. The EEOC expressly declined to opine on this issue and instead referred employers to the FDA’s website. The EEOC’s guidance, however, confirms that from the EEOC’s perspective, the federal laws within its purview (Title VII, ADA, ADEA, GINA) do not prohibit mandatory vaccination programs.
Voluntary, as opposed to mandatory, COVID-19 vaccination programs have fewer restrictions and pose few compliance obligations. The guidance also discussed employer-provided incentives for voluntary vaccination programs.
Lane Powell’s team of attorneys is here to help you develop and implement the strategy that supports your business and your employees. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Katheryn Bradley, Beth Joffe, Courtney McFate, Priya Vivian or Riley Moyer.
Lane Powell attorneys Michael Kitson and Christine Thelen presented on this topic at a webinar on February 18, 2021 sponsored by the Association of Washington Business. To view the recording, click here.
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