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Vaccine Incentives, Employee Confidentiality, and Latest EEOC Guidance: What Employees Need to Know

June 21, 2021

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On May 28, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to address common employment questions about vaccinations. Recently, many employers have required employees to return to the workplace. This leaves many employees wondering what protections they have concerning their vaccination status. The key points of the EEOC’s guidance are outlined below.

The EEOC first explained that under current federal laws, employers can require employees to return to the office. For those who are unable to become vaccinated for medical reasons, employers may have to provide reasonable accommodations, as defined under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Before ordering employees back to work, employers should check state and local laws to ensure compliance. Lastly, employers should keep in mind that certain demographics may have more difficulty obtaining the vaccine.

The EEOC then outlined employers’ abilities to offer incentives to employees that “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 an employer collects this type of information, it must be kept confidential in accordance with the ADA. The EEOC allows employers to offer incentives for vaccination, “as long as the incentives are not coercive.” The EEOC has not yet defined the term “coercive.”

One of the most common misconceptions about vaccine confidentiality is that employees are covered by the Health Insurance Portability and Accountability Act (HIPAA). This is untrue. HIPAA is not interchangeable with the ADA, as it only covers medical institutions and related institutions, such as insurance companies. It prevents those institutions from disclosing private medical information without permission, but no one else. The ADA requires employers to take caution when disclosing employee medical information, and disclose only when necessary. However, employers are not prohibited from asking about anyone’s vaccination status.

Recent case outcomes have confirmed that federal judges are following the EEOC’s advice. These guidelines were put to the test when all in-person employees of a Texas-based hospital were required to become fully vaccinated. When several employees were suspended without pay after not receiving the vaccine, they filed a lawsuit against their employer. The federal judge dismissed the case in favor of the hospital. This type of outcome is likely in future cases.

As of today, the EEOC has not issued any formal guidance on mask requirements. However, the EEOC has acknowledged recent Centers for Disease Control and Prevention guidelines exempting vaccinated individuals from mask requirements. In general, guidance on vaccines in the workplace are subject to change, so both employers and employees should watch for updates.

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