As the Delta variant emerges as the dominant strain of COVID-19 in Ohio and vaccines become widely available, employers are increasingly considering instituting vaccination policies in the workplace. Before rolling out a voluntary or mandatory vaccination policy, employers should consider the Equal Employment Opportunity Commission’s (“EEOC”) guidelines to adhere to the requirements of Title VII and the ADA.

Mandatory Versus Voluntary Policies

The most common question employers have is whether they may institute either a voluntary or mandatory vaccination policy in the workplace. In May, the EEOC confirmed that federal EEO laws do not prevent employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19, so long as reasonable accommodations are provided for employees who either have a qualifying disability or sincerely held religious belief, practice, or observance. As with any reasonable accommodation, employers should first engage in the interactive process to determine whether an accommodation is appropriate, and no accommodation is required where it would pose an undue hardship on the operation of the employer’s business.  Also ensure that any vaccination policy instituted treats all class of persons similarly.

Incentivizing the Injection

In addition to vaccination policies, many employers are also considering whether to provide vaccination information and incentives to employees. Generally, employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccinations, and address common questions and concerns. Additionally, employers are permitted to encourage employees and their family members to get vaccinated; however, there is a limit as to what records an employer can require.

  • Employers may provide incentives for employees to voluntarily provide documentation confirming their vaccination status.
  • Employers can provide incentives for employees to receive a vaccination, voluntarily, by the employer or their agent, so long as the incentive is not unduly coercive.
  • Employers may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.

Keeping Confidential Information

Finally, employers must maintain the confidentiality of an employee’s vaccination status. Employers may require employees to bring in documentation confirming an employee’s vaccination status, but this information, like all employee medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Currently, the Ohio General Assembly is considering several bills that could impact an employer’s right to mandate or incentivize employees to get vaccinated.   We will provide updates as necessary.  The attorneys at Fishel Downey regularly advise employers on compliance with federal and state laws in the unique circumstances presented by the COVID-19 pandemic and will continue to offer up-to-date guidance. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.