As COVID-19 cases begin to rise again due to the delta variant, many employers are fearing that another shutdown may be on the horizon. In an effort to avoid this scenario, protect the safety of employees and customers, and guard against the potential financial damage another shutdown will cause to their business, an increasing number of employers have begun requiring that onsite employees get vaccinated as a condition of their employment. But is a vaccination mandate legal? According to the U.S. Equal Employment Opportunity Commission (EEOC), the answer is yes.
Based on new guidance issued by the EEOC on May 28, 2021, employers can legally require employees to get vaccinated in order to re-enter the workplace. In addition, employers are allowed to provide incentives to encourage employees to get the COVID-19 vaccine, with certain caveats (more on this below).
Based on the statement from the EEOC, vaccine mandates don’t violate workplace discrimination laws, and employers have the right to terminate employees who fail to comply with their mandates. However, employers who wish to avoid the potential backlash associated with a strict vaccine mandate may opt for a “soft mandate” instead. This would provide employees who choose not to get vaccinated with alternative solutions and accommodations that would allow them to keep their job. These accommodations may include:
There are two scenarios where employees may be legally exempt from an employer vaccine mandate:
Certain protected medical conditions may prevent individuals from safely getting vaccinated. These situations fall under the Americans with Disabilities Act (ADA), and the employee may be eligible for a vaccine exemption as long as it doesn’t place an undue hardship on the employer.
Religious beliefs are protected under Title VII of the Civil Rights Act. This law states that employers cannot discriminate against employees based on certain protected criteria, including religion. In order to qualify for a religion-based vaccine exemption under Title VII, the employee must be able to demonstrate that they have a sincerely held religious belief. As with protected medical conditions, this exemption is contingent upon proof that it won’t impose an undue hardship on the employer.
One other situation where an exemption may be warranted under Title VII is if a vaccination policy disproportionally affects individuals from certain demographic groups that face greater difficulty getting vaccinated compared to the general population. In these situations, accommodations may be required for employees of impacted demographic groups.
It is also legal for employers to offer incentives and rewards for employees who choose to get vaccinated. Many businesses have already gone this route. Common incentives used include:
However, there are certain caveats associated with offering these incentives. If employees must get vaccinated by a third-party provider, these forms of rewards and incentives are perfectly legal. However, if the employer is providing vaccination in-house, the incentives offered must not be considered coercive. In these situations, incentives must be much more minimal, such as movie tickets or office swag (t-shirts, water bottles, etc.).
The reason for this distinction is that when employers administer the vaccine themselves, it would involve them asking employees about their medical history during the vaccine pre-screening process. The ADA states that workplace health initiatives such as a vaccination program must be voluntary in order for the employer to ask for medical information, since these requests may force an employee to reveal a disability. On the other hand, asking employees to provide proof of vaccination from a third-party healthcare provider eliminates the need to reveal information associated with their medical history, making these stronger incentives legal.
The decision to require employee vaccination upon re-entering the workplace should involve a considerable amount of thought and planning to ensure it is done both legally and respectfully. At Premier Employer Services, we offer robust HR consulting services to help you navigate these difficult policy decisions.
Our unique Elevated Engagement Plus Approach™ has been developed to help you create a more successful and inspired organization. As part of this approach, we’ll listen carefully to understand your workforce dynamic and the challenges your team faces. We’ll use this information to help you create a vaccination policy that is both compliant with all EEOC regulations and addresses the unique needs of your team.
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