On May 28, 2021, the Equal Employment Opportunity Commission issued updated informal guidance on COVID-19 and the federal employment laws that it enforces. This round of guidance focused on COVID-19 vaccines and their intersection with the workplace. With the CDC recently exempting fully vaccinated individuals from masking requirements (except where otherwise required by other federal, state, or local laws or regulations), the EEOC’s updated guidance is especially timely and important.
Mandating the COVID-19 Vaccine
The EEOC reiterated that employers may mandate that all employees who physically enter the workplace be vaccinated for COVID-19, subject to the reasonable accommodation requirements for employees with disabilities (under the ADA) or sincerely held religious beliefs (under Title VII) that preclude them from receiving the vaccine. The EEOC did note that its guidance is limited to the federal employment discrimination laws and does not address other legal issues associated with mandatory vaccine policies, such as the Emergency Use Authorization issue that some have raised to claim that mandatory vaccine policies are legally problematic.
The EEOC also noted that employers who mandate the vaccine may need to respond to claims that the requirement has a disparate impact on (i.e., disproportionately excludes) employees based on a protected trait, particularly if certain groups may face greater barriers to receiving the vaccine.
Possible Reasonable Accommodations for Mandatory Vaccine Situations
The EEOC offered some possible reasonable accommodations that an employer may need to consider for employees unable to be vaccinated due to a disability or religious beliefs. These examples included wearing face masks, social distancing in the workplace, a modified work schedule, periodic COVID-19 testing, remote work, and reassignment. The guidance also reminded employers that employees unable to be vaccinated due to pregnancy may be entitled to an accommodation to allow them to continue working if such accommodations are made for non-pregnant employees.
The guidance also confirmed that the interactive process for vaccination-related accommodation situations is the same as the standard ADA interactive process for all disability-related accommodations.
With respect to possible religious accommodation situations, the EEOC recommended that employers ordinarily assume that an employee’s request for a reasonable accommodation is based on a sincerely held religious belief, practice, or observance. If the employer is aware of facts that would call into question the religious nature or sincerity of such a belief, practice, or observance, the employer would then be justified in requesting additional information to support the request.
Direct Threat of Unvaccinated Individuals
For those employers who have considered mandating the vaccine, a fundamental question has been what to do with those employees who are unable to get vaccinated due to a disability. Can such individuals be excluded from the workplace without running afoul of the ADA? To do so under the ADA, the employer would need to take the position that the unvaccinated employee poses a direct threat to the employee and/or others. In its most recent guidance, the EEOC outlined the requirements for this analysis.
The EEOC explained that this assessment must be individualized and based on the employee’s present ability to safely perform the essential functions of the job. The analysis should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. According to the EEOC, relevant factors include:
- The level of community spread at the time of the assessment.
- Statements from the CDC.
- Information obtained from the employee’s health care provider with the employee’s consent.
- The type of work environment, such as whether the employee works alone or with others or works inside or outside, the available ventilation, the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees, 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.
In addition, employers must assess whether providing a reasonable accommodation, such as masking and other mitigation matters, would reduce or eliminate that threat.
As with many ADA situations, this analysis often will not provide a clear answer on whether an employer lawfully may bar an unvaccinated employee from its workplace. To further cloud the issue, the EEOC noted that the direct threat assessment likely will vary over time and from circumstance to circumstance, as the understanding of COVID-19 and guidance from federal, state, and local authorities continue to evolve. As the number of active COVID-19 cases continues to drop and the number of vaccinated individuals continues to rise, it becomes even more difficult for employers to make a direct threat determination and exclude unvaccinated employees from the workplace.
Encouraging and Incentivizing the Vaccine
The EEOC confirmed that employers may encourage employees and their family members to get vaccinated by providing educational information, raising awareness, and addressing common questions and concerns. In addition, the EEOC clarified that employers may offer vaccination incentives to employees so long as the incentives are not so substantial as to be coercive and the incentive is not tied to the employee receiving the vaccine from the employer or an entity with whom the employer has contracted to provide the vaccine to its employees. Employers also may require employees to provide documentation or other confirmation from a third party not acting on the employers behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated. However, the guidance announced the EEOC’s position that employers may not offer incentives for employees’ family members to get vaccinated.
Confidentiality of Vaccination Information
In its most recent guidance, the EEOC stated its position that an employee’s vaccination status constitutes confidential medical information under the ADA. Although the EEOC did not alter its prior position that requiring proof of vaccination is not a disability-related inquiry under the ADA, it now has taken the position that vaccine status is confidential medical information under the ADA.
The validity of the EEOC’s position that requesting vaccination documentation is not a disability-related inquiry, but that the information provided must nevertheless be kept confidential, is legally questionable. However, employers should take reasonable measures to keep information regarding vaccine status confidential and store such information separate from an employee’s personnel file.
The EEOC did not addressed whether employers may require employees to wear visual indicators of their vaccination status for purposes of administering a mask requirement policy, leaving that an unanswered question for employers. The ADA permits the disclosure of confidential medical information to supervisors or managers with a legitimate business need to know the information. Because the CDC recommends and some states require masks for unvaccinated people, there may exist a legitimate business need to communicate to managers and supervisors whether the employees under their supervision are vaccinated to allow them to enforce the mask requirements. However, managers and supervisors should have access only to the information relating to employees under their supervision and should understand that they should not discuss one employee’s vaccination status with other employees.
With the move away from masks for fully vaccinated individuals and the increasing reopening of workplaces, vaccinations and their effect on workplace policies and practices are the next big step in the journey that has been COVID-19. The EEOC’s most recent guidance provides few surprises and little change from employers’ prior assessments of the relevant issues, with the possible exception of the position taken on the confidentiality of vaccination status. However, the guidance is a useful resource for understanding the rules and challenges employers face as we all slowly reenter “normal.”