The US Equal Employment Opportunity Commission (EEOC) issued guidance to employers on Friday, May 28, 2021, clarifying and expanding information about questions related to the COVID-19 pandemic. The headline coming from this announcement relates to whether or not an employer can mandate the COVID-19 vaccine for employees physically returning to the workplace. In its release, the EEOC stated that employers can, in fact, require employees to be vaccinated and incentivize employers to get the vaccine with some exceptions. We answer some common questions to this latest update below.
Can my employer require the COVID-19 vaccine?
With limited exception, the answer is yes, your employer can require the COVID-19 vaccine in order for you to return to the physical workplace or as a condition of employment. The EEOC’s latest guidance added that employers must accommodate employees who are protected under the Americans with Disabilities Act (ADA) and/or cannot discriminate against anyone because of a religious belief.
What are the exceptions for a COVID-19 vaccine requirement?
As with every vaccination requirement, there are exceptions for those who have a medical disability that leaves them unable to receive the vaccine, and for those who have a sincerely held religious belief against vaccines. An employer must allow reasonable accommodations for anyone protected under the ADA. For instance, an employee who cannot get vaccinated because of an underlying health condition could be allowed to work remotely or provided a space to work that is physically distant from other workers.
In both instances, the burden of proof lies with the employee. In the case of religious exemptions, those exemptions usually do not include personal or ethical objections.
Can my employer ask for my vaccine card?
Yes, your employer may ask for proof of a vaccine and require a card or other type of proof of vaccination from a medical provider. Your employer must protect your privacy and keep the information confidential.
Can my employer offer incentives for employees to get a COVID-19 vaccine?
Yes, employers may offer incentives, as long as they are not ‘coercive’ to encourage their workers to get vaccinated or to provide proof of vaccination. As many news outlets are reporting, many employers are offering paid time off, bonuses or other incentives to encourage vaccination.
The EEOC made sure to point out that if an employer mandates vaccination from COVID-19, they cannot apply the mandate in a way that would treat employees differently based on disability, race, color, religion, sex, national origin or age. The agency added 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.”
Whether vaccine mandates actually show up in your workplace might be a case-by-case question. A hospital or healthcare setting may require a COVID-19 vaccine, as they do for many other vaccines, while a mainly office-based workforce with many employees already working remotely may decide no mandate is necessary.
Brandon J. Broderick, Employment Law, New Jersey and New York
If you are experiencing discrimination in the workplace, Brandon J. Broderick, Attorney at Law, can help. Rated one of New Jersey’s top employment law firms, Brandon J. Broderick is focused on client care and passionately pursuing the best interests of our clients. Contact us today for a free consultation.