Employers are allowed to require the COVID-19 vaccine and legally provide incentives, including cash, to workers who get inoculated, according to updated Equal Employment Opportunity Commission guidelines.
Many Employers May Choose To Identify Their Employees To Get The Vaccination
Companies, however, are still mandated to provide reasonable accommodation for their employees who are exempt from mandatory immunization under the Americans with Disabilities Act and Title VII of the Civil Rights Act. The commission also stated that employers’ incentives must not be “coercive,” They stopped short of providing examples of illegal offers towards the vaccination. Some, given that most companies are looking forward to bring their employees back to work, experts say there’s enough legal grey area that could bring in a flurry of lawsuits.
It is not clear what is considered coercive, as the personal perception will be greatly at play, said Helen Rella, an employment attorney at New York-based law firm Wilk Auslander. “There are people who might find an incentive of $100 coercive while another person might find an incentive of $10,000 coercive. That’s where the door is left open where we don’t have the detailed guidance we were hoping to receive.”The door has been left open.
“The updated technical assistance released today addresses frequently asked questions concerning vaccinations in the employment context,” EEOC Chair Charlotte A. Burrows said in a statement. “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy-to-understand, and helpful information. We will continue to address the issues that were raised at the commission’s recent hearing on the civil rights impact of COVID-19.”
Employers that offer on-site vaccinations must continue to keep employees’ personal medical information obtained during pre-vaccination screenings confidential.
Typically, on-site programs are administered by a third-party medical provider or pharmacy to which one’s medical information is disclosed versus an employer.
“Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information,” Rella said.
The Centers for Disease Control and Prevention recently relaxed the guidelines around mask-wearing, and the states’ repeals of mandates could also create friction between companies and their employees. Let us say A company develops a policy under which vaccinated employees may go mask-less, but unvaccinated workers must continue to cover their faces. That puts employers in the position of policing the workplace and asking employees to divulge potentially confidential information.
“There might be a flood gate of litigation in this area sometime soon,” Rella said. Many long-term care operators have already set the requirement for vaccination to return to work to keep their jobs, according to AARP.
The organization reports that Juniper Communities, which operates 22 facilities in Colorado, New Jersey, Pennsylvania, and Texas, established a mandate a few months ago. Atria Senior Living, which operates more than 200 long-term care facilities in the U.S. and Canada, did so in January. Silverado, which operates 22 facilities across six states, required shots starting in February. According to AARP, the long-term care companies say the vaccination mandate has largely worked.
Each long-term care company established deadlines for workers to get vaccinated or face termination. At the time of the deadlines, all three companies said staff members were vaccinated at rates of 95% or more, AARP reported.
Several universities have also mandated that staff get a COVID-19 vaccine. However, many major employers are stopping short of making a COVID-19 vaccine a requirement to return to work.
Each long-term care company sets deadlines for their workers to get vaccinated or face termination. At the time of the deadlines, all three companies said staff members were vaccinated at rates of 95% or more, AARP reported. Many universities have also mandated that staff get a COVID-19 vaccine.