In May 2021, the Equal Employment Opportunity Commission (“EEOC”) updated Section K of ‎its COVID-19 guidance to provide additional insight on workplace vaccination programs. Since ‎December 2020, when the EEOC first issued COVID-19 vaccine guidance, the vaccine ‎landscape has changed considerably—vaccines are more widely available and more than 40% ‎of the U.S. population is fully vaccinated. Given these developments, employers may be ‎considering whether to incorporate vaccination policies into their plans to fully and safely ‎welcome employees back to the office. The EEOC updated its guidance to address the ‎applicability and impact of federal equal employment opportunity (“EEO”) laws on both ‎mandatory and voluntary vaccine programs, clarify how and when employers may use vaccine ‎incentive programs, and discuss employee privacy considerations. ‎

Topics Not Included in EEOC Guidance

Two pressing concerns for employers are not addressed in the EEOC guidance. First, the EEOC ‎does not address recently-issued guidance from the Centers for Disease Control (“CDC”) on ‎safe activities for vaccinated individuals because the EEOC prepared its guidance before the ‎CDC guidance came out. Thus, the EEOC does not address what distinctions employers can ‎make in its workplace protocols (masks, etc.) between vaccinated and unvaccinated employees. ‎Employers will need to stay tuned for more EEOC guidance on this topic. In addition, the ‎EEOC noted that while it received many inquiries regarding the impact on workplace ‎vaccination programs of the Emergency Use Authorization status of the COVID-19 vaccines, as ‎determined by the Food and Drug Administration, this topic is beyond its jurisdiction. ‎

Mandatory vs. Voluntary Vaccination Programs: ADA and Title VII Considerations

A. Mandatory Vaccination Programs Permitted

The EEOC guidance is premised on its position that the act of administering the vaccine is not a ‎‎“medical examination” under the Americans with Disabilities Act (“ADA”) nor does it involve ‎the use of an employee’s genetic information under the Genetic Information Nondisclosure Act ‎‎(“GINA”). As such, the EEOC contends that these and other federal employment ‎nondiscrimination and EEO laws do not prohibit an employer from implementing a mandatory ‎vaccination program. These include programs that require employees who physically enter the ‎workplace to either: (1) receive the vaccine from the employer or the employer’s agent; or (2) ‎confirm receipt of the vaccine from a third party. Employers should note that other applicable ‎laws or practical considerations may impact an employer’s ability to implement a mandatory ‎vaccine program for certain workplaces and should be considered in conjunction with this ‎EEOC guidance. Employers are also reminded to apply any vaccination requirement in a way ‎that does not treat employees differently based on a protected category or result in a disparate ‎impact on a protected group. ‎

B. Reasonable Accommodations

Vaccination programs are subject to the reasonable accommodation requirements of the ADA ‎and Title VII of the Civil Rights Act. In fact, the EEOC suggests as a best practice that ‎employers who mandate vaccines should notify employees that the employer will consider ‎reasonable accommodation requests on an individualized basis. ‎
The EEOC opines that under the ADA, an employer cannot require that an employee with a ‎disability (including pregnancy-related disabilities) comply with its mandatory vaccination ‎program unless: (1) the employee poses a direct threat to the health and safety of the employee ‎or others in the workplace because the employee is not vaccinated; and (2) allowing a ‎reasonable accommodation would not reduce or eliminate such threat. ‎

In order to establish that an employee with a disability that prevents the employee from ‎receiving the vaccine poses a direct threat, an employer must prove that the employee causes a ‎substantial risk of harm because the employee is not vaccinated. The updated guidance notes ‎that the direct threat analysis requires the employer to make an individualized assessment of the ‎employee’s present ability to safely perform the essential functions of the job, based on the ‎following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; ‎‎(3) the likelihood that the potential harm will occur; and (4) the imminence of the potential ‎harm. Further, the EEOC guidance states that the direct threat analysis should be based on ‎reasonable medical judgment that relies on current medical knowledge about COVID-19, ‎including the level of community spread, available CDC guidance, and information from the ‎employee’s medical provider with the employee’s consent. Finally, the EEOC notes that the ‎direct threat analysis should take into account the employee’s work environment, including ‎among other things the number of partially or fully vaccinated individuals already in the ‎workplace, whether other employees are wearing masks or undergoing routine screening testing, ‎and the space available for social distancing. However, as previously discussed, even if an ‎employer is able to establish that an unvaccinated employee with a disability poses a direct ‎threat based on these factors and considerations, if such threat can be reduced or eliminated by a ‎reasonable accommodation, the employee does not pose a direct threat. ‎

Employees with a disability who are fully vaccinated may also request an accommodation from ‎a return-to-work program based on the employee’s concern of a heightened risk of severe illness ‎from COVID-19. ‎

The guidance also states that under Title VII, an employer must provide a reasonable ‎accommodation to an employee with a sincerely-held religious belief, practice, or observance ‎that prevents the employee from getting the COVID-19 vaccine, unless the accommodation ‎would pose an undue hardship to the employer. Employers may request additional supporting ‎information if the employer is aware of facts that provide an objective basis for questioning ‎either the religious nature or the sincerity of a particular belief, practice, or observance. ‎However, employers should note that courts have historically held a very broad view of what ‎can constitute a religious belief.‎

For any accommodation request, employers should engage in the interactive process to ‎determine if there is a need for a reasonable accommodation due to disability or religious belief, ‎practice or observance. The EEOC provides examples of potentially reasonable ‎accommodations, including face masks, social distancing, modified shifts, periodic COVID-19 ‎testing, telework if feasible, or reassignment if possible. The EEOC cautions employers to ‎‎“consider all options before denying an accommodation request” and that an accommodation is ‎considered reasonable if it does not pose an undue hardship. Undue hardship for a religious-‎based accommodation is a lower standard to meet than for a disability based accommodation. ‎Accommodations made to employees must be kept confidential and should not subject ‎employees to retaliation.‎

C. Medical Inquires and Confidentiality

The ADA generally restricts when and how much medical information an employer can obtain ‎from an employee. Specifically, the ADA only allows employers to make disability-related ‎inquires about employees if they are job-related and consistent with business necessity. ‎Therefore, an additional legal issue an employer may face in implementing its vaccination ‎program involves the CDC’s COVID-19 vaccine pre-screening questions. The EEOC states that ‎these pre-screening questions are likely to elicit information about an employee’s disability, and ‎as such, must be job-related and consistent with business necessity to comply with the ADA. ‎

In the context of mandatory vaccination programs in which employees are required to obtain ‎the COVID-19 vaccine from the employer or the employer’s agent, that EEOC guidance ‎indicates that in order for the pre-screening questions to meet this standard, an employer must ‎have a reasonable belief, based on objective evidence, that an employee’s failure to answer the ‎questions, and thus inability to obtain the vaccine, causes a direct threat in the workplace. The ‎same “direct threat” analysis applies here as with the disability accommodation analysis ‎previously discussed. ‎

Conversely, the EEOC notes that if the employer has a voluntary vaccination program, such that ‎employees can choose whether to answer the CDC’s pre-screening questions, the ADA’s ‎restrictions on disability-related inquiries do not apply to the pre-screening questions. Likewise, ‎when an employer asks employees whether they obtained the COVID-19 vaccine from a third ‎party unaffiliated with the employer, the ADA’s restrictions also do not apply because this ‎inquiry is not likely to disclose the existence of a disability.‎

Importantly, regardless of whether the pre-screening questions constitute disability-related ‎inquires per the EEOC guidance, the EEOC states that employers must keep the information ‎obtained in response to pre-screening inquires confidential and stored separately from the ‎employee’s personnel file. The EEOC also considers information or documentation an ‎employer receives from an employee regarding the employee’s vaccination status to be medical ‎information, which must also be kept confidential and stored separately. State and local laws ‎may provide additional protections for vaccination status as well.‎

Additionally, inquiries regarding why an employee is not vaccinated may inadvertently elicit ‎information about an employee’s disability status. As such, the ADA’s restriction that such ‎questions be job-related and consistent with business necessity applies. Given the requirements ‎the EEOC guidance dictates are necessary to meet this standard, employers should generally ‎refrain from posing these questions to employees. ‎

Vaccine Education and Incentives

In K.3 of the EEOC guidance, the EEOC emphasizes incentivizing vaccinations through ‎education by employers. The EEOC provides links to resources as well as a summary of ‎vaccination-related obstacles employees may face and how employers may assist employees in ‎overcoming them. ‎

For monetary or other incentives, while the legality and scope of such employer-sponsored ‎wellness programs remain in limbo after the EEOC withdrew its proposed wellness rules earlier ‎this year, the EEOC provides some guidance on how employers may use these incentives to ‎encourage employees and their family members to voluntarily obtain the COVID-19 vaccine. ‎The EEOC distinguishes between those employers who administer the vaccine directly and ‎those who want to incentivize vaccination by third parties, finding that:‎

• Under the ADA and GINA, an employer may offer incentives to employees without ‎restriction to encourage employees and their family members to obtain the vaccine from ‎third parties not acting on the employer’s behalf.‎
• Under the ADA, employers may offer incentives to employees who receive the vaccine ‎administered by the employer or the employer’s agent; however, the incentives may not ‎be so substantial as to be coercive.‎
• Under GINA, employers may vaccinate an employee’s family members, but may not ‎offer incentives in exchange for a family member’s receipt of a COVID-19 vaccine ‎administered by the employer or the employer’s agent because the CDC’s pre-screening ‎questions would reveal the employee’s family medical history. ‎

However, additional legal issues may further complicate vaccine incentive programs. For ‎example, the EEOC did not define what constitutes a substantial or coercive incentive. Further, ‎the updated guidance is silent on how employers should apply incentive programs to employees ‎with disabilities or sincerely-held religious beliefs preventing them from receiving the vaccine. ‎Finally, even when EEO laws permit employers to offer incentives, employers should be wary ‎of any incentives that could trigger state and federal wage and hour laws. ‎

Conclusion

Given the significant legal and practical considerations involved with implementing a ‎vaccination program, there is no one-size-fits-all approach. In addition to weighing the pros and ‎cons of particular vaccination policies, as we addressed in more detail in a prior article found ‎‎here, each employer should also carefully evaluate the EEOC’s updated guidance, as well as the ‎ever-changing guidance from federal, state, and local officials, on issues ranging from ‎workplace safety to privacy to vaccination status, in order to decide whether and how to ‎implement the right vaccination program for each of its locations and for each segment of its ‎workforce. ‎