Employers can mandate and incentivize vaccines

Employers can require employees to be vaccinated against COVID-19, as long as mandates comply with the Americans With Disabilities Act (ADA) and other federal laws, according to updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC).

No federal laws specifically bar businesses from requiring vaccinations for employees heading back to the office or offering incentives to encourage workers to get vaccinated, the EEOC said in its guidance, issued on May 28. The update clarifies how the ADA, the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act of 2008 interact with vaccine mandates and incentive programs.

The EEOC’s guidance applies to employees physically entering the workplace, not remote workers. Employers must also provide reasonable ADA accommodations for employees who are unable to get the vaccine due to allergies or other restrictions, according to the guidance. The EEOC reminded employers that vaccination distribution is not yet equitable across all regions and demographics, and “some employees may be more likely to be negatively impacted” by a mandate.

Incentives to share vaccination status are allowed, but cannot be “coercive,” according to the federal agency, adding that substantial rewards could pressure employees into revealing information they otherwise would not.

In many instances, employers have offered paid leave, gift cards, and bonuses to encourage workers to get vaccinated. Smaller businesses that provide paid leave to employees will also be eligible for a tax credit under the American Rescue Plan Act of 2021. A Mercer survey released in February found that only 20% of respondents were considering vaccine mandates, with most employers worried about compliance issues and legal liability in the event of bad reactions to vaccines.

The EEOC’s updated guidance followed an April 28 hearing after a coalition of business groups urged the agency to provide employers with legal certainty specifically around incentives. However, lawsuits and legislation have already cropped up to challenge vaccine mandates in recent weeks. Houston Methodist Hospital faces litigation from 117 staffers over its vaccine mandate, with plaintiffs arguing they are being used as “guinea pigs.” The Durham, NC, county sheriff was also sued over a vaccine mandate, and a group of California educators sued the Los Angeles Unified School District in March over vaccine requirements.

On the public-facing side, businesses also face complications with requiring proof of vaccination from customers. In May, Florida Gov. Ron DeSantis signed legislation to ban businesses from requiring “vaccine passports” and as many as 40 states have been reported as considering vaccine-related legislation.

Article courtesy of Erin Ayers @ Zywave/Advisen

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