E.E.O.C. Explains Workplace Vaccine Mandates
The agency reminded employers to consider the fact that access to the vaccine is not yet equitably distributed.
The E.E.O.C. explains how companies can mandate vaccines for workers.
June 1, 2021, 9:34 a.m. ET
Companies can require vaccines only of employees returning to the workplace, the Equal Employment Opportunity Commission said.Credit…John Muggenborg for The New York Times
At the urging of business groups, the Equal Employment Opportunity Commission has made clear how companies can issue vaccine mandates to workers coming back to the office, and what incentives those employers can offer to promote inoculation.
Companies can require vaccines only of employees returning to the workplace, and not those who work outside the office, the E.E.O.C. said in guidance released on Friday. But doing so still counts as a mandate, so companies must give the same legally required considerations that companywide vaccine requirements would entail, like making accommodations under the Americans with Disabilities Act for employees who can’t receive the vaccine. That means allowing for exceptions for those who may be unable to take the vaccine for health reasons, like an allergy.
Jessica Kuester, an employment benefits lawyer at the law firm Ogletree Deakins, said that specification was important. “I worry that some employers were sort of going down the wrong path, and thinking that it wasn’t that big of a deal to have a vaccination requirement,” she said.
The E.E.O.C. acknowledged in its guidance there may be other laws — like state laws — offer opposing views. And it reminded employers to consider the fact that access to the vaccine is not yet equitably distributed.
“Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a Covid-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement,” the agency wrote.
Employers can also offer vaccine incentives, as long as they are not coercive, the E.E.O.C. clarified. (Under nondiscrimination rules laid out in the Health Insurance Portability and Accountability Act, that could mean, for example, offering 30 percent discount of the total cost of medical plan coverage).
Employers can offer enticements like paid time off to get vaccinated — which Darden Restaurants and many other companies have done, as well as rewards for employees who show proof of inoculation, like the $75 bonus that Walmart is offering. Companies have also been offering the opportunity to go mask-free at the office as a type of inducement, though several aren’t asking for proof of vaccination, perhaps as a concession to practicality.
“Are you really going to go around and, when you see an employee without a mask, are you going to run back to H.R. and verify that that person really was fully vaccinated?” Ms. Kuester said.