On May 28, 2021, the Equal Employment Opportunity Commission (the “EEOC”) posted updated and expanded technical assistance addressing frequently asked questions concerning vaccinations in the employment context. The Guidance clarifies the right of employers to require Covid-19 vaccination in most cases. Essentially, the Guidance says requiring vaccination does not break any laws, so employers have the power to do it, as far as the EEOC’s jurisdiction goes. But that does not mean mandatory vaccination is going to happen. In a recent survey, 83% of employers reported they do not plan to implement mandatory vaccination. Lawsuits are challenging mandatory vaccination in Texas, North Carolina, and California. Governors and state legislatures in a number of states, led by Florida and Texas, are proposing statutes to prohibit mandatory vaccination. EEOC Guidance would not overrule any of those efforts.
Here are some highlights of the issue:
a. Mandatory Vaccination
According to the updated Guidance, an employer can require that all employees who physically enter the workplace be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and other EEO considerations. That means those with medical or religious objections must be exempted. The ADA requires employers to provide reasonable accommodations, such as masking or distancing alternatives, to employees who cannot be vaccinated due to medical conditions. The EEOC also reminds employers that some populations face barriers to vaccination, so employers should be mindful of potential disparate impact claims. A disparate impact claim is a discrimination claim that alleges that an otherwise non-discriminatory policy is in fact discriminatory because it impacts one or more groups differently based on protected characteristics, such as race or ethnicity. For example, if mandatory vaccination makes it difficult for Hispanic employees to comply due to the lack of availability of vaccines, that could be an issue.
b. Use of incentives:
Federal EEO laws do not prevent employers from offering incentives to employees to voluntarily provide proof of vaccination from a third party so long as employers keep vaccination information confidential pursuant to the ADA. Employers that administer vaccines to their own employees may offer incentives for employees to be vaccinated so long as the incentives are not coercive. (Vaccination pre-screening requires disclosure of underlying medical conditions, so a large incentive could pressure an employee to disclose protected medical information to her employer, which is a violation of the ADA.)
c. Providing information:
Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
Finally, the Guidance reminds us that antibody tests cannot be required by employers, as an antibody test is a medical test, and the ADA prohibits mandatory medical testing. (Covid testing is permitted because there is a declared pandemic.)
d. Cultural concerns:
Employers who navigate the legal minefield may still opt not to mandate vaccination. First, unfortunately, some employees don’t want to be vaccinated, either because they fear the vaccine or they have “political” objections to required vaccination. The past year has showed us there are significant cultural divides over how to approach the pandemic. A sizable portion of the population oppose requirements to do something that is smart to do (like wearing masks) based mostly on the idea that people should be “free” to not do smart things. (Yes, that sentence reflects a bias against those who refuse to vaccinate or wear masks.) What is sad about this situation is that vaccination does not just protect the individual. The overriding purpose of a national vaccination program is to vaccinate enough people to create herd immunity, which will drive the virus out of circulation. Too many people today reject the idea of doing something for the purpose of helping other people. This “national selfishness” is a cultural phenomenon beyond the scope of this article. But employers need to be aware that their workforce is unalterably divided. Some will object to mandatory vaccination while other workers object to non-vaccinated workers being present because they are a health threat to the rest. As we crawl, or maybe gallop, out of the pandemic, employers are well advised to remember that their workforce, like the population at large, is deeply divided over many issues, including those relating to Covid-19. We are going to need to learn to work side-by-side again with people with whom we may disagree, and employers should anticipate it may be a bumpy road for some.
John C. Cook and Broderick C. Dunn are partners in the Fairfax firm of Cook Craig & Francuzenko. Their practices center on the representation of executives, employees, and small businesses in a wide range of employment law issues. Both Mr. Cook and Mr. Dunn are highly active in the Virginia and Fairfax Bar Associations and speak and write regularly on employment law issues. Both have been selected to the Virginia “SuperLawyers®” lists by their colleagues.
