Before the COVID-19 pandemic, around 20% of employed Americans said they worked from home; by the end of 2020, that percentage jumped up to 71%. Now, with nearly half of the U.S. population vaccinated, people are starting to head back to their offices. But a new, looming question has presented itself: Are companies allowed to mandate their employees get vaccinated before deleting Zoom and ditching their WFH sweatpants?
The answer is yes, but it’s a little complicated. On May 28, the Equal Employment Opportunity Commission announced that employers can legally require returning employees to receive the COVID-19 vaccine; the commission also said that companies can encourage employees to get jabbed, even by offering incentives. However, when it comes to employees who can't receive the vaccine due to barriers or disabilities, companies aren’t allowed to be “coercive,” and they are expected to implement accommodations.
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This is in line with the EEOC’s stance on company policies about the flu vaccine: Mandates are allowed, but employees should be able to claim exemptions. “As a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment,” wrote the commission.
As a result of the announcement, legal experts are concerned that the EEOC’s guidelines are vague, and we could see a wave of lawsuits from unvaccinated workers. “What is ‘coercive’ is unclear because, just as with anything else, one person’s view of what is a coercive incentive is not the same as another person’s,” New York-based employment attorney Helen Rella told CBS News. “You might find an incentive of $100 coercive and another person might find an incentive of $10,000 coercive… We don't have the detailed guidance we were hoping to receive.”
What’s also tricky is that the EEOC says it’s okay for employers to ask about vaccination status, but certain follow-up questions — including about why a worker isn’t vaccinated — could be considered “disability-related inquiries” under the Americans with Disabilities Act (ADA). As the Job Accommodation Network wrote, the ADA allows employers to require vaccinations, but also requires them to ideate “reasonable accommodation solutions” for people who cannot receive the vaccine. To avoid implicating the ADA altogether, wrote the EEOC, any employers asking for proof of vaccination might “want to warn the employee not to provide any medical information as part of the proof.”
Despite the gray areas, several major companies have already started either requiring or incentivizing their employees to get the vaccine. The Wall Street Journal reported that the juice and smoothie company Bolthouse Farms has offered employees $500 to get the shot. Other corporations — including Target and Kroger — are offering paid time off and free Lyft rides to vaccine appointments.
Justin Holland, CEO and founder of HealthJoy, a benefits company that works with hundreds of employers, told Human Resource Executive that he expects many companies will begin requiring vaccination. “Given the amount of misinformation and anti-vaccination sentiment floating around, it may well be a hard conversation. It might be uncomfortable,” Holland said. “But before we can go back to in-person work, I think it’s something that will need to happen.”