On the brink of a holiday weekend and the return of many employees from working remotely back to the office, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance on Friday, May 28 regarding vaccinations in the workplace. Since March 2020, the EEOC has updated a question and answer document entitled “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws,” to provide employers with guidance on compliance with the EEO laws during the pandemic. Section K, which was originally issued on December 16, 2020 to address COVID-19 vaccinations, was updated to provide guidance on mandatory vaccine policies, reasonable accommodations for employees who decline the vaccine under a mandatory policy, and permissible incentives for employees and employee family members who elect to get vaccinated.
VACCINE MANDATES AND RELATED ACCOMMODATIONS
The EEOC previously announced that employers may implement mandatory vaccine policies without violating the federal laws enforced by the EEOC, so long as reasonable accommodations are made for employees declining the vaccine due to a disability covered by the Americans with Disabilities Act (ADA) or a sincerely-held religious belief, practice or observance covered by Title VII of the Civil Rights Act (Title VII). However, employers were left with little guidance as to the type of accommodation they could offer these employees. Now, the EEOC provides the following examples of reasonable accommodations for employees who are unvaccinated due to a disability or sincerely-held religious belief that would not pose an undue hardship on the operation of the employer’s business: wearing a face mask, working at a social distance from other employees or non-employees, working a modified shift, teleworking, periodic COVID-19 testing, and reassignment. The EEOC also clarified that employees who are not vaccinated due to pregnancy may be entitled to similar modifications to continue working under Title VII.
Although the EEOC has again confirmed its position that vaccine mandates, in and of themselves, do not violate federal anti-discrimination laws, the EEOC has also stated that employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement. Thus, employers thinking of instituting vaccine mandates should monitor the impact on protected groups and be mindful of potential “disparate impact” claims.
INCENTIVES FOR VOLUNTARY EMPLOYEE VACCINATIONS
After months of confusion, the EEOC also issued guidance concerning compliance with the ADA and the Genetic Information Nondiscrimination Act (GINA) for employers wanting to provide incentives for their employees to voluntarily receive a COVID-19 vaccine. Specifically, the EEOC states that an employer can offer incentives to employees to voluntarily provide documentation or confirmation that they have been vaccinated. However, if the employer is offering an incentive to employees for voluntarily receiving a vaccine administered by the employer or its agent, then the incentive cannot be “so substantial as to be coercive.” The EEOC reasons that a large incentive could make employees feel pressured to disclose confidential medical information in response to an employer pre-vaccination disability-related screen.
Unfortunately, the EEOC guidance does not provide any examples of appropriate incentives that would comply with the required “not so substantial as to be coercive” standard. This same limitation does not apply if the employer is offering an incentive to employees who provide documentation or confirm that they received the vaccine from a provider who is not their employer or an agent of the employer.
INCENTIVES FOR EMPLOYEE FAMILY MEMBER VACCINATIONS
Under the guidance, employers can offer incentives to employees to provide documentation or confirmation that their family members have been vaccinated from a third party other than the employer or employer’s agent without violating GINA. The EEOC specifies that documentation or other confirmation that the employee or a family member has been vaccinated is not an unlawful request for genetic information under GINA because it is not information about genetic information or the manifestation of a disease or disorder in the employee’s family member. Notwithstanding, an employer cannot offer an incentive to an employee in exchange for a family member’s receipt of a vaccination from the employer or its agent. Doing so could potentially violate GINA as it would require the vaccinator to ask the family member the pre-vaccination screening questions, ultimately leading to the employer’s receipt of genetic information in the form of family medical history of the employee.
In summary, the EEOC’s guidance provides that any employer-offered incentive programs involving an employee receiving a vaccination from any entity that is not the employer or employer’s agent (i.e. the employee’s physician, drug store, or local health department) is acceptable, regardless of the type of incentive offered. The only incentive program that appears to cause pause for the EEOC involves the employee receiving the vaccine directly from the employer or employer’s agent, because those situations could involve an exchange of information that would constitute a medical exam subject to the ADA. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA. Notably, the EEOC guidance is silent on whether vaccine incentive programs, whether involving employer-administered vaccines or otherwise, must have exceptions for employees who decline a vaccination for a protected reason under the ADA or Title VII.
The EEOC’s guidance only pertains to compliance under the federal EEO laws. As states may offer opposing views on vaccines, employers should ensure that they are following all required state and local laws for their place of business. And with the Centers for Disease Control and Prevention’s May 13 announcement that fully vaccinated individuals do not need to wear masks or socially-distance, employers also must grapple with how to keep their employees safe without violating the federal EEO laws. It goes without saying that this is a constantly evolving area as the EEOC Chair Charlotte A. Burrows said, “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information.”
Bottom line, employers should continue to monitor this tricky and quickly developing area of the law, and confer with an experienced employment attorney when in doubt about how to proceed.