On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) released long-anticipated updates to its guidance regarding COVID-19 vaccinations. In addition to clarifying the confidentiality requirements for vaccination information and guidelines for instituting vaccination incentive programs, the EEOC provided additional direction for employers implementing mandatory and employer-sponsored voluntary vaccination programs. The guidance is also useful for employers who are considering how to relax mask mandates, social distancing, and related COVID-19 policies.
Here are a few areas covered by the guidance.
The new EEOC guidance addresses three different types of COVID-19 programs:
In its clearest statement on mandatory vaccinations so far, the EEOC’s new guidance states unequivocally, “The federal [equal employment opportunity (“EEO”)] laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the [Americans with Disabilities Act (the “ADA”)] and other EEO considerations.”
While employers can require vaccination for all employees, the EEOC reaffirmed employers’ duty to accommodate individuals who cannot receive a COVID-19 vaccination for a protected reason. According to the guidance, any mandatory vaccination program “should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis” and train managers on how to recognize accommodation requests. In order to receive an accommodation, employees must let their employers know they need an exemption from any vaccination requirements. Employers cannot disclose to others that an employee has requested or is receiving an accommodation.
The EEOC also offered practical guidance on what might qualify as a reasonable accommodation, including wearing a face mask, working at a social distance from coworkers and customers, working a modified shift, getting periodic COVID-19 testing, being given the opportunity to telework, or accepting reassignment. This guidance applies to both employees who cannot receive a vaccination and those with other COVID-19–related accommodation requests, such as employees who are vaccinated but face a heightened risk of severe illness if they contract COVID-19 due to an underlying condition.
Still, accommodations of disabilities are not required if they pose an “undue hardship” to the business, meaning “significant difficulty or expense” to the employer. Similarly, employees who have a sincerely held religious (not political) objection to the COVID-19 vaccination are entitled to accommodations unless they pose an undue hardship, which in the religious context means “more than minimal cost or burden.” Finally, pregnant employees who cannot receive a vaccination due to their pregnancies are entitled to be treated the same as other employees who are “similar in their ability or inability to work,” which means they too are entitled to reasonable accommodations.
The EEOC cautioned that employers should ensure that any mandatory vaccination program does not unduly burden any particular class of employees. In other words, employers may not implement a vaccine mandate in a way that singles out a particular group, such as those over 40 or those with health conditions. Additionally, employers should be aware that some groups may face greater barriers to receiving a COVID-19 vaccination, which could mean these groups are more likely to be negatively impacted by a vaccination requirement. Similarly, employers who offer a voluntary employer vaccination programs should ensure that employer-sponsored vaccinations are offered to employees on a class-neutral basis.
The EEOC also permits employers to encourage and educate employees on vaccinations. Employers can provide information to employees “to educate them about COVID-19 vaccination, raise awareness about the benefits of vaccination, and address common questions and concerns.” The EEOC recommends sharing resources from the CDC and Vaccines.gov and reminding employees that vaccination is available to every American over the age of 12 at no cost. Further, employers may gather and provide resources to employees about how to make vaccination appointments, including for those who do not speak English or who do not have Internet access, and about low-cost and no-cost transportation resources to vaccination sites.
The EEOC reaffirmed its prior position that employers may ask whether or not an employee is vaccinated and request documentation showing proof of vaccination. However, employers cannot ask follow-up questions about vaccination, such as asking why or why not an employee is vaccinated, which could reveal protected information. Further, employers should ensure that the proof of vaccination provided by employees does not include any other medical information, such as answers to screening questions administered prior to vaccination. Employers should make clear that the proof of vaccination should contain only information about the vaccination itself.
One common question that follows from this is whether employers can identify those employees who are vaccinated. The EEOC has now answered this question: no. Vaccination status is considered confidential medical information that cannot be shared with other employees and should be maintained confidentially, including storing any documentation in a separate file away from employees’ usual personnel files. However, while the EEOC did not address the question directly, this should not prevent an employer from making public more general vaccination information, such as the percentage of the entire workforce that is vaccinated.
Employers who administer or hire vendors to administer vaccinations to their employees face heightened confidentiality requirements because they are more likely to receive confidential medical information that is protected by the ADA. For mandatory, employer-sponsored vaccination programs, employers must show that pre-vaccination screening questions are necessary because “an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.” This standard will likely vary from industry to industry. For voluntary employer vaccination programs, employers do not have to meet this standard in order to ask screening questions, so long as both the vaccination and answering the questions is voluntary. However, in both cases, the employers must maintain the answers to screening questions and other vaccination information confidentially and separately from other employee personnel files, as required by the ADA.
Perhaps most anticipated was the EEOC’s new guidance on incentive programs for vaccination programs. The EEOC has now clarified that there is no limitation on the incentives employers can offer for employees who participate in a voluntary, community-based vaccination program. These “incentives” can include both rewards for employees who get vaccinated and penalties for those who do not. In order to qualify for these unlimited incentives, two conditions must be met: (1) providing proof of vaccination must be voluntary and (2) the employees must get COVID-19 vaccinations on their own from a third-party provider (such as a clinic, pharmacy, or public vaccination location) and not from the employer or someone working for the employer. Employers may even offer additional incentives to employees who voluntarily provide documentation that their family members have also received vaccination from third-party sources not affiliated with the employer. However, employers cannot require that employees’ family members be vaccinated.
Employers with mandatory or voluntary employer-sponsored vaccination programs can offer reasonable incentives to employees to get vaccinated, but these incentives must be “not so substantial as to be coercive.” Overly large incentives (or penalties) could pressure employees to disclose protected medical or genetic information. Employers with employer-sponsored vaccination programs can allow employees’ family members to receive vaccinations from the employer, but cannot either mandate or incentivize family members to participate and cannot penalize employees whose family members do not participate.
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