The novel Coronavirus (COVID-19) has run rampant globally for the last year and has made workplace compliance complicated and complex. As more employers are returning to offices, Human Resources teams may struggle with one particularly complicated issue: requiring and mandating proof of vaccination and vaccines in general.
Several questions may be brought up when thinking or talking about the vaccine such as:
- Can employers require proof of vaccination?
- Can employers require the vaccine?
- Can employers incentivize employees to get the vaccine?
Can Employers Require Proof of Vaccination?
The short answer to this question is, yes. Employers can require proof of vaccination, and they can ask if you have gotten the vaccine. In most instances it is not a violation of HIPAA, since it is not a disclosure of public health information by someone who is required to keep it private. Under the EEOC (Equal Employment Opportunity Commission) guidelines, asking for proof of vaccination is not likely to reveal or elicit a response that requires disability related information therefore employers can ask, however, it is advised that employers be careful about asking why an employee did not get the vaccine, so they are not violating anything from the EEOC, ADA (Americans with Disability Act), and GINA (Genetic Information Nondiscrimination Act).
Can Employers Require the COVID-19 Vaccine?
Employers can require vaccines, but there are many states that are currently trying to pass legislation to prevent the mandate of the COVID vaccines. Employers can require the COVID-19 Vaccine, however, in some circumstances because of a disability or a sincerely held religious belief, practice or observance, an employee may not get vaccinated. For this reason, a reasonable accommodation must be made that would not pose an undue hardship on the operation of the employer’s business.
Employers who mandate COVID-19 vaccines of their employees should ensure they are providing reasonable accommodations to employees as required under the ADA and/or Title VII under the EEOC to prevent discrimination and violations of the EEOC.
It is also important to that while mandatory vaccinations do not violate federal EEO laws, an employer must also consider any applicable state and local laws that might be inconsistent or more restrictive than the EEOC guidance.
Can employers incentivize employees to get the vaccine?
The short answer to this question is also yes. Employers can provide incentives to employees who get the COVID-19 vaccine. it is allowed if it is not so substantial to be consider coercive. Since this may be considered vague, it is important that the employer consult legal counsel to ensure that the incentive is appropriate and not coercive in nature.
Ultimately, one should stay informed on the most up to date information for the COVID-19 vaccine and the regulations put in place to ensure that employers, employees, and companies are following the correct guidelines and regulations.