The EEOC recently came up with new guidance regarding employer mandated vaccines for its employees.

“On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers regarding COVID-19 vaccinations. In essence, the EEOC confirmed that employers can in fact, require the vaccine for its employees. Further, employers are permitted to offer incentives for employees who choose to get the vaccine, or alternatively, penalize employees that choose not get the vaccine.

As previously indicated, some restrictions do apply. For example, employers must comply with existing laws, such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. While employers can require proof of vaccination from an employee, this is considered confidential medical information that must be stored separately from the employee's personnel file.

If an employer chooses to offer incentives to its employees, the incentive can “not be so substantial as to be coercive.” Notably, the EEOC did not advise or define what is considered a substantial coercive measure. Moreover, the EEOC indicated that employers can incentive employees to merely obtain the vaccine without mandating it, and did not place a restriction on the size of the incentive in a situation in which vaccination is merely encouraged.

This additional clarification and guidance does not differ extensively from what was previously known regarding vaccine mandates, aside from the fact that the EEOC indicated that an incentive for a mandated vaccine could “not be so substantial as to be coercive.” Nevertheless, this is pertinent information for employers considering employing a vaccine mandate program for its employees.

As always, if you have any questions regarding implementation of a vaccine the work place, please do not hesitate to contact Jared Vessell at jared@vbmlaw.com or Jordan Hudspith at jordan@vbmlaw.com.”