As Employers Embrace Vaccine Mandate, What Do Federal Rules Allow?

Last week Axios looked into the growing movement for employers to require workers to receive the COVID-19 vaccine. Major corporations that have announced vaccine mandates include:

• Google, Facebook, and Uber, which will require vaccination for all U.S. employees who return to in-person work;
• Netflix, which will require casts and crew for U.S. productions to be vaccinated;
• Morgan Stanley, which will require clients to be vaccinated before coming into the office for meetings; and
• The Washington Post, which will require vaccination as “a condition of employment” starting Sept. 13, 2021.

The federal government itself has decided to enact a vaccine mandate. The Biden administration announced last week that all federal employees and contractors will be required to either get a COVID-19 shot or to submit to regular testing and other precautionary measures. Local and state governments also have announced similar mandates for government and health care employees.

So what, exactly, can employers require of their workers?

As a reminder, on May 28, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance outlining the types of incentives businesses can offer employees to encourage them to get a COVID-19 vaccine. The guidance, which is available here and which the law firm Kelley Drye summarizes here, said:

• Federal law does not prevent an employer from requiring all employees physically entering the workplace to get a vaccine so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity (EEO) considerations. Other laws not in EEOC’s jurisdiction may place additional restrictions on employers, however.
• Employers must keep in mind that, because some individuals or groups may face barriers to receiving a vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.
• If employers choose to obtain vaccination information from their employees, they must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated as long as those incentives are not coercive. Additionally, 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.
• Employers may provide employees and their family members with information educating them about COVID-19 vaccines and the benefits of vaccination.

Additionally, on July 26, the U.S. Department of Justice’s Office of Legal Counsel (OLC), which is the legal adviser to the president  and all executive branch agencies, published a memorandum opinion concluding that federal law permits public agencies and private businesses to require COVID vaccines, even while the vaccines have only emergency use authorization (EUA). Although the OLC opinion is not considered binding legal authority, it delivers a strong opinion favoring mandatory vaccines by employers.

Want more information? Find more analysis of the EEOC’s guidance at IndustryWeek. Korn Ferry has more here.