Late last week the EEOC updated its COVID- Frequently Asked Questions. Highlighted updates include guidance on collecting information about vaccine status, mandatory vaccine policies, and offering incentives to encourage vaccinations.
Collecting Information About Vaccine Status
Per the EEOC, CONFIRMED that employers CAN ask employees whether they have received the COVID-19 vaccine and may require proof of vaccination. Employers CANNOT, however, ask follow-up questions (e.g., “Why are you not vaccinated?”) that could elicit disability-related information or genetic information, including information about the employee’s family medical history.
WARNING- employers can ask about vaccine status, but they have an obligation to keep the answer CONFIDENTIAL. This is medical information and it must be stored securely and separately from personnel files. This information belongs with HR and it SHOULD NOT BE SHARED WITH MANAGERS.
Mandatory Vaccine Policies
Per EEOC, CONFIRMED that employers may require all employees to be vaccinated to enter the workplace, provided that that employers who mandate the vaccine also engage in the interactive process and offer reasonable accommodations to accommodate for disability/pregnancy/sincerely held religious beliefs (where possible). Additionally, the FAQs clarify:
Per the EEOC, CONFIRMED that employers CAN offer incentives to encourage vaccination:
A Warning about COVID Obligations in Virginia
Back in July 2020, the Virginia Occupational Safety and Health (VOSH) Program enacted an Emergency Temporary Standard, which included detailed requirements for disinfection, ventilation, infectious disease plans, hand sanitization, positive case reporting, and face coverings. A slightly modified version of that standard became permanent on January 27, 2021. This new permanent standard does not distinguish between vaccinated and unvaccinated workers.
The VOSH’s FAQ webpage states that fully vaccinated employees in non-healthcare settings may discontinue wearing face coverings, consistent with CDC guidance. However, VOSH has not modified the Permanent Standard language and has not provided clear guidance for employers on how to manage employees’ vaccination status.
We raise this as a warning and a reminder. All of this is happening SO FAST, and governments are trying to keep up with the latest science, the latest legal guidance, and the latest vaccination rates. It’s a tough job, and we do not envy them. But the answers remain cloudy, and employers must add “keep up with COVID guidance” to their ever-evolving to-do list. If you want help on that front—reach out to us and we will see if there are budget-friendly solutions we can offer.
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.
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