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Since the notion of a vaccine began to circulate, employers have anxiously wondered whether they will be allowed to mandate their employees be vaccinated. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released formal guidance answering this question.  Yes, employers will be allowed to mandate employees to receive the COVID-19 vaccine.  The EEOC guidance informs employers that while they may require vaccines, employees still maintain legal protections affiliated with religious beliefs or a disability.  Such protections may allow employees to be exempt from vaccination requirements. Employers will be expected to make exemption determinations on an individual, fact-specific basis.

The EEOC guidance document also addresses the administering of the vaccine. The guidance discusses the concept of vaccines being distributed by the employer and what information the employer may elicit as part of the pre-vaccination process. It reminds employers of an employee’s right to privacy under the ADA, as well as pursuant to the Genetic Information Nondiscrimination Act (GINA). The EEOC indicates clearly that an employer can mandate that an employee provide proof vaccination but encourages that employers remind their employee not to provide the aforementioned protected medical/genetic information as part of this disclosure. 

The EEOC guidance document answers the question of whether an employer can mandate the vaccine but does not answer the now even bigger question of should an employer make such a mandate. This question is one that employers must carefully analyze based on their individual needs and the needs of the community they serve. Please feel free to reach out to Tressler to help you weigh this consideration and how best to proceed.

For more information about this article, contact Tressler attorney Elizabeth Wagman at ewagman@tresslerllp.com.