EEOC PROVIDES UPDATED COVID-19 VACCINATION GUIDANCE FOR EMPLOYERS
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) posted updated guidance for employers which clarifies and supplements earlier guidance regarding vaccinations. (“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).
The updated guidance discusses incentives for voluntarily vaccinations, although it leaves some questions unanswered. Employers may offer incentives to employees to voluntarily get vaccinated by third-party providers (such as pharmacies, health care providers, or public health departments) with no limitation. Employers that administer vaccinations themselves (or contract with an agent to do so) may also offer incentives to employees to get vaccinated; however, the incentives must not be so substantial as to be coercive. This is because under current vaccination protocols, employees must answer pre-vaccination screening questions, and a large incentive could cause employees to feel pressured to disclose medical information. Unfortunately, the EEOC did not provide any guidance as to when an incentive will be considered coercive.
The EEOC did not address whether an incentive program will implicate the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 if it excludes employees who are unable to get vaccinated due to disability or sincerely held religious belief, practice, or observance. Employers wishing to offer incentives for employees to voluntarily get vaccinated should consider providing an alternate way to participate for those employees who are unable to get vaccinated due to disability or for religious reasons.
The guidance recognizes that some employers may want to encourage employees’ family members to get vaccinated. Employers can offer incentives to employees to provide proof that family members have been vaccinated by third-party providers. However, incentives are not permitted for vaccinations that are administered to family members by the employer or its agent. This is because asking family members the required pre-vaccination screening questions will result in the employer’s receipt of genetic information about the employee (i.e., the employee’s family medical history). The Genetic Information Nondiscrimination Act (GINA) prohibits employers from providing incentives in exchange for genetic information.
Also, to comply with GINA, employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members do not get vaccinated. Employers must ensure that all medical information obtained from family members during the pre-screening process is used only for purposes of providing the vaccination, is kept confidential, and is not provided to anyone who makes employment decisions. In addition, employers must obtain prior, knowing, voluntary, and written authorization from the family member before asking any questions about medical conditions.
The updated guidance reiterates that an employer can require employees working onsite to be vaccinated, provided that the employer complies with the reasonable accommodation requirements under the ADA and Title VII for any employees who are unable to get vaccinated due to a disability or a sincerely held religious belief, practice, or observance. Employers may also need to accommodate employees who do not want to get vaccinated due to pregnancy. Employers cannot discriminate against pregnant employees as compared to other employees who are similar in their ability or inability to work. Therefore, a pregnant employee would be entitled to accommodations (e.g., telework, adjustments to schedules or assignments, or leave) to the extent provided for other employees who are similar in their ability or inability to work.
The guidance mentions several “best practices” for employers with mandatory vaccination policies. Before instituting such policies, employers should train management about how to handle accommodation requests. Employers should notify all employees that requests for reasonable accommodation will be considered on an individualized basis and provide contact information of a management representative for this purpose. Employers should consider all options for accommodation before denying accommodation requests.
A mandatory vaccination policy may not be applied in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate, non-discriminatory reason. The guidance reminds employers that some individuals or demographic groups may face greater barriers to receiving a vaccination. Therefore, some employees may be more likely to be negatively impacted by a mandatory vaccination policy, which could potentially lead to allegations that the policy has a disparate impact.
If mandatory vaccinations are administered by the employer or its agent, the required pre-vaccination screening questions are considered disability-related inquiries under the ADA, and so must be job-related and consistent with business necessity. To meet this standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and therefore is not able to be vaccinated) will pose a direct threat to the health and safety of the employee or others in the workplace. An employer can avoid the need for the complex direct threat analysis by not administering mandatory vaccinations itself or through an agent. (If mandatory vaccinations are administered by a third-party provider, the screening questions will be asked by the third-party provider and will not implicate the ADA.)
Whether a vaccination is administered by the employer, an agent of the employer, or a third-party provider, information about an employee’s vaccination status is considered confidential medical information under the ADA and must be maintained in a secure location separate from personnel files.
The guidance reminds employers that some fully vaccinated employees may still need a reasonable accommodation; for example, employees who are immunocompromised may not have the same level of protection from the vaccination as other individuals.
The EEOC is currently considering whether the CDC’s recent guidance for fully vaccinated individuals will impact the guidance that the EEOC has provided to date. As always, employers should continue to monitor the EEOC’s website regularly for updates.
This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.