The agency reminded employers to consider the fact that access to the vaccine was not yet equitably distributed.
By Lauren Hirsch
June 1, 2021 - The New York Times
The agency that enforces workplace discrimination laws has said ・twice ・that companies can make their employees who are returning to the job get vaccinated against Covid-19.
But so far, few companies have decided to move forward, as many are still engaging in internal debates about how to safely restore their offices to operations that resemble what they were before the pandemic.
Pressed by some of the nation’s biggest business groups, including the U.S. Chamber of Commerce, the Equal Employment Opportunity Commission said Friday that companies could mandate vaccines as a requirement for coming into the office. The agency had issued a similar note in December.
Some companies say they are wary of setting mandates until the vaccines have received full approval by the Food and Drug Administration, which so far has granted emergency use authorization. Another reason many companies remain hesitant, according to executives, lawyers and consultants who advise companies, is the long list of legal considerations the E.E.O.C. says they must follow before mandating vaccines.
While Saks and Delta Air Lines have said they will require vaccines for at least some employees, most have arrived at a solution more like that of JPMorgan Chase. The bank, which opened its offices on a voluntary basis on May 17 and will require most workers to return to their desks in rotations starting in July, has said it is strongly encouraging but not yet mandating vaccines.
Jamie Dimon, the bank’s chief executive, said at a House Financial Services Committee hearing last week that he felt it was safe for employees to return to the office.
“No one’s being forced to do anything,” Mr. Dimon said. “We want everyone to be vaccinated ・we’re not requiring that.”
Vaccine mandates must abide by the Americans With Disabilities Act and the Civil Rights Act of 1964, the E.E.O.C. said. That means companies must accommodate employees with health concerns like allergies and keep that information confidential.
“I think that the fact that it takes the E.E.O.C. several pages of notes to talk about all the steps you need to take to reasonably accommodate someone who has a disability or a religious reason why they can’t get a vaccine is one of the reasons why employers might still choose not to mandate,” said Douglas Brayley, an employment lawyer at Ropes & Gray.
Companies are considering whether to offer incentives for employees to get vaccinated, or to show proof of vaccination, while stopping short of a mandate. But even trying to nudge workers can be legally fraught.
The E.E.O.C. said Friday that employers could offer inducements as long as they were not “coercive,” or so strong that they made participation essentially involuntary. The agency did not define what constitutes a coercive incentive.
“They don’t want to go out on a limb when there are still cases yet to happen and allegations have to be made,” Mr. Brayley said.
The agency also reminded employers to consider that access to the vaccine is not yet equitably distributed. Certain groups of people face greater barriers to vaccination, and the agency said employers should consider that in any back-to-work requirements.
A long list of companies, including the Olive Garden parent Darden Restaurants and McDonald’s, are offering paid time off for employees to be vaccinated. Amazon is offering frontline workers who get vaccinated a bonus of up to $80. Walmart workers are being offered a $75 bonus, but they must provide proof they have been vaccinated.
Some companies, like JPMorgan and Goldman Sachs, are allowing employees who have been vaccinated to go without masks while in the office, following guidance that the Centers for Disease Control and Prevention issued last month on masks and social distancing. Walmart will allow vaccinated employees to go mask-free in its stores and offices. None of the companies require employees to provide proof of vaccination to go without masks.
Workplace policies allowing vaccinated workers to go mask-free raise questiok-ns about whether companies are prepared to monitor who is wearing masks.
“When you see an employee without a mask, are you going to run back to H.R. and verify that that person really was fully vaccinated?” asked Jessica Kuester, an employment benefits lawyer at the law firm Ogletree Deakins.
Sharon Masling, an employment specialist at the law firm Morgan Lewis, said companies might be more inclined to mandate vaccines as vaccines became more widespread and obtained full F.D.A. approval.
“I can say that we are getting more questions about requiring vaccines for employees than we were even a month ago,” Ms. Masling said.