US Federal agency says a vaccine can be required. What does this mean?
<p>The EEOC, the Equal Employment Opportunity Commission, a US Federal agency, <a href="https://www.cbsnews.com/news/covid-vaccine-employers-require-incentives/" rel="nofollow noreferrer">is reported</a> as saying that employers can require people to take vaccines. What does <em>required</em> mean? Can employers fire people for not taking the vaccine?</p>

<p>You can't just interpret the word &quot;require&quot; in isolation, you have to focus on what is allowed vs. disallowed by law. <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws" rel="noreferrer">Guidance point</a> K.1 starts with the rhetorical question</p>
<blockquote>
<p>Under the ADA, Title VII, and other federal employment
nondiscrimination laws, may an employer <em>require</em> all employees
physically entering the workplace to be vaccinated for COVID-19?</p>
</blockquote>
<p>They respond that no federal EEO laws prohibit such a requirement &quot;subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations&quot; (thus providing an answer to the question whether it can always be &quot;required&quot;. However, they do not discuss the possibility that other laws (non-EEO, state, local: also contract law) that would prevent an employer from &quot;requiring&quot; a vaccination.</p>
<p>They do not elaborate on ways that an employer might &quot;require&quot; a vaccination, leaving it to the inventive reader to figure out what legal leverage a company might have to get compliance. Assaulting non-compliant employees is not legal; withholding wages is not legal. Reassigning a non-compliant worker to working in the sub-basement may be legal, requiring a non-compliant worker to wear an anti-vaxer warning badge might be legal. Firing the employee, or reducing their hours to 0 until they comply, might be legal. But the EEOC is not advising employers in safe ways to sanction non-compliant workers, they are just stating <em>their</em> interpretation of applicable anti-discrimination law. Indeed, they can only address matters of discrimination, because that is what they address in general. They do <em>not</em> write the labor law regulations, that's the job of the Dept. of Labor. <em>They are not giving legal advice as to the scope of allowed requirements set by employers</em>.</p>

<h2>Overview</h2>
<p>The EEOC document linked in the news story is <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws" rel="nofollow noreferrer">&quot;What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws&quot;</a>. In form it is an FAQ, that is, a series of questions and answers. The document provides <strong>guidance</strong> by the EEOC, and represents the EEOC's opinion as of the date it was issued. It is not a legally binding determination, but a court would presumably give it at least some weight in making judgements, and people following such guidance would, I suppose, be held to have been acting reasonably even if a court later disagrees with the guidance in a particular case.</p>
<p>The document states that an employer may require vaccination for COVID-19 as a condition for an employee physically entering the workplace. Such a requirement would be  subject to the requirement of a reasonable accommodation for any disability and for a sincere religious belief.  Such a requirement may not be imposed in an way that discriminates against or has a disparate impact on groups protected under federal anti-discrimination laws, such as national origin, race, religious belief, sex, or age. Nor may it violate other existing state or federal laws or regulations, many of which are outside of the purview of the EEOC.</p>
<p>An employer may, according to this document, require employees to accept vaccination provided directly by the employer, or accept vaccination by third parties. If it accepts third party vaccination, it may require documentation that such vaccination has in fact been performed.</p>
<h2>Incentives</h2>
<p>The employer may, according to this document, offer &quot;incentives&quot; for an employee to accept vaccination. Such &quot;incentives&quot; may be positive (rewards) or negative.  These may be for accepting an employer-provided =vaccination, or for accepting vaccination from a third party.  However, if the incentive is for an employer-provided vaccination, then because the screening questions reveal medical information and could reveal a disability, incentives may not be so large as to coerce or unduly pressure an employee into revealing such information. If the employee has the option to get a 3rd-party vaccination, so that no medical information is revealed to the employer, while still getting the same incentive, then the ADA is not a bar to the incentive.</p>
<p>The employer may not offer incentives for having an employee's family members vaccinated, but may offer voluntary vaccinations to such family members.</p>
<h2>Section K of the FAQ</h2>
<p>Section K  of the FAQ  deals with vaccination for COVID-19.</p>
<p>Question K1 and its answer are:</p>
<blockquote>
<p><strong>K.1.   Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?    (5/28/21)</strong></p>
<p>The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.  These principles apply if an employee gets the vaccine in the community or from the employer.</p>
<p>In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).</p>
<p>As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)).  Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.</p>
<p>It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.</p>
</blockquote>
<p>This says that employers <strong>may</strong> (but need not) require employees to have been vaccinated for COVID-19 before entering the workplace. Such a requirement may be subject to modification for employees who have a medical reason why they cannot or should not be vaccinated. It may also be subject to modification for employees who have a &quot;sincere religious belief&quot; against receiving such vaccination. Whether this applies, and what modified requirement or accommodation can be used is determined on a case-by-case basis, in light of the specific facts. The employer can require medical confirmation of the reasons why an employee should not be vaccinated. Beliefs not supported by medical or religious reasons are not covered in this guidance.</p>
<p>The answer to question K.3 says that:</p>
<blockquote>
<p>Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21.  ...</p>
</blockquote>
<p>The answer to question K.6, which deals with requests by employees who are not vaccinated because of a disability,  includes the statement that:</p>
<blockquote>
<p>Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.</p>
<p>...</p>
<p>... The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).  Employers are advised to consider all the options before denying an accommodation request.</p>
</blockquote>
<p>Question K.9 says:</p>
<blockquote>
<p><strong>K.9.  Under the ADA, is it a “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic?</strong>   (12/16/20, updated 5/28/21)</p>
<p>No.  When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.</p>
<p>However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.</p>
</blockquote>

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