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Employers can require their workers to be vaccinated for COVID-19 but should keep in mind that some individuals or demographic groups may be more likely to be negatively impacted by a vaccination requirement, the U.S. Equal Employment Opportunity Commission said in guidance issued Friday.
The EEOC said that while employers can mandate vaccinations, they must still comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 and other equal employment opportunity laws. Furthermore, other laws not in the agency’s jurisdiction may place additional restrictions on employers.
The EEOC guidance says reasonable accommodations include asking the worker to wear a face mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment.
It warns it is unlawful to apply a vaccination requirement in a way that treats employees differently based on disabilities, race, religion or other such factors, unless there is a legitimate, nondiscriminatory reason for doing so.
The guidance says also that employers are not prevented or limited from offering incentives to workers to voluntarily provide documentation or other confirmation of vaccinations from third parties in the community, such as a pharmacy, personal health care provider or public clinic.
If employers do choose to obtain vaccination information from their workers, they must keep this information confidential under the ADA.
The guidance says employers that are administering vaccinations to their workers can offer incentives, so long as they are not coercive. It warns, however, that because vaccinations require employees to answer pre-vaccination disability-related screening questions, a “very large” incentive could make employees feel pressured to disclose protected information.
The guidance says also that employers can provide employees and family members with information to educate them about COVID-19 vaccines and raise awareness about their benefits.
Experts have said that while the EEOC and the Occupational Safety and Health Administration have said that employers can mandate that workers receive the COVID-19 vaccine, it may not be the best approach.
Legislation proposed in many states that would stop employers mandating COVID-19 vaccinations and protect those who refuse to be vaccinated likely won’t make it onto many statute books, but the measures could still cause problems for employers.