New Guidance for a COVID Vaccination Policy: What Employers Need to Know Now

Employers that are creating their return to work plans or just reconsidering their COVID vaccination policy should be aware of new guidance from the EEOC. As of May 28th, 2021, the EEOC released new information on what is legal and in HR compliance when it comes to two topics: requiring vaccination at work and offering incentives for vaccination. MP’s HR services team share 3 updates employers need to know to keep their employee policies in compliance and the best HR strategies to implement next.

1. Employers now have slightly more support to require their employees who come on-site to be vaccinated for COVID.

This is a slight change from what HR and compliance experts were advising previously. Before the guidance, HR experts were concerned that a mandatory COVID vaccination policy would potentially create a legal minefield for employers that could facilitate lawsuits and claims of discrimination. They advised employers to hold off on requiring the COVID vaccine unless they could make a business case for it. This essentially ruled out any businesses that were not hospitals, pharmacies, home care agencies, or places where medically vulnerable populations were served. Instead, many HR providers suggested that employers encourage vaccination among their workers. This new guidance states that an employer may require their on-site staff to get the COVID vaccination. However, there are still many key factors to keep in mind.

• Employers must remain ADA compliant and offer exceptions and the interactive process to those who have ADA-qualified disabilities and make requests.
• They must not run afoul of Title VII of the Civil Rights Act of 1964 (which protects people from employment discrimination based on their race, color, religion, sex, national origin, and other EEO considerations like sexual orientation). Most frequently, the concern in this case will be religious objections to vaccination.
• The EEOC strongly suggests that employers should remember that some communities and individual employees could find it more difficult to get vaccinated. Thus, employers should take the population of their staff into account and offer exceptions for requiring the COVID vaccine. If a high majority of an employer’s staff is in a demographic that will have difficulty obtaining vaccination, they may want to reconsider requiring it at all.
• OSHA recently released guidance that states that if an employer requires COVID vaccination from its employees and they experience and adverse effect from the vaccine, this will count as a recordable incident.

Best HR strategies: Employers that need to require the vaccine for on-site employees will have more support to do so. (This might include hospitals, pharmacies, etc.) However, they should ensure that there is room for exceptions when employees:

• have a medical reason they can’t or won’t be getting vaccinated
• have a religious reason they can’t or won’t be getting vaccinated
• are in a population that might have a tough time accessing vaccination

Employers that create a COVID vaccination policy should consult with HR providers like MP as well as employment lawyers to be sure that their policy and execution are in compliance. They should also be aware that when employers do require COVID vaccination, any adverse effects from the vaccine can be considered workplace injuries.

2. Employers now have more support to offer incentives to employees for proof of vaccination.

Whereas previously the guidance from the EEOC wasn’t strong enough for HR compliance professionals to recommend offering incentives for COVID vaccination, this new guidance has made this course of action less risky and more likely to be in compliance. Previously, HR professionals were likely to suggest that offering incentives for vaccination might be invite lawsuits or complaints of discrimination. This new guidance suggests that employers can incentivize COVID vaccination if they don’t make these errors:

• Require employees to share protected, pre-vaccination health information (which some vaccination screening questions could require)
• Neglected to keep any employee health information confidential under ADA guidelines
• Fail to offer an alternative way for employees to earn the incentive if they can’t or won’t be getting vaccinated, including watching a COVID safety video, receiving COVID safety training, etc.

Best HR strategies: MP’s HR team suggests that employers be extremely cautious about offering incentives. They need to ensure that everyone can earn an incentive, even if they have a legitimate reason not to get vaccinated.

3. Employers can offer employees and their family members information on COVID vaccination, as well as generally raise awareness of the benefits of COVID vaccination.

While previously employers may have been hesitant to begin conversations with their staff about COVID vaccination, this guidance will now make them more confident to do so. The guidance actually points out specific government resources for obtaining vaccination that employers can share with their employees. Employers might take this step as a complement to requiring the COVID vaccine or in lieu of requiring vaccination.

Best HR strategies: Employers can share information about COVID vaccination and its benefits with their employees. This can be done regardless of whether the employer will be requiring vaccination, incentivizing vaccination, encouraging vaccination, or none of these options.