On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers. This long-awaited guidance clarifies that employers can require COVID-19 vaccinations and even provide incentives.

Vaccinations

Employers can require employees who enter the workplace to be vaccinated for COVID-19. However, the employer must comply with all applicable laws, including the reasonable accommodation provision of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Employers can also require employees to provide proof of vaccination, but this information will be considered medical information that must be kept confidential and stored separately from the employee’s personnel file pursuant to the ADA.

Incentives

Employers can offer vaccine incentives—but restrictions apply if the employer is administering the vaccines to employees and all employers must maintain confidentiality of vaccine information subject to ADA rules applicable to other medical information.

For employers offering vaccines to employees, the employer can provide vaccine incentives—and even penalties—so long as they are “not so substantial as to be coercive.” The EEOC guidance suggests that a large incentive could pressure employees to disclose protected medical information through the pre-vaccination disability-related screening questions. The EEOC did not offer guidance on what incentive could be “so substantial as to be coercive.”

In contrast, the EEOC did not provide a limit on the size of incentives employers can provide if they only request proof of the employee’s COVID-19 vaccination.

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