The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on May 28, 2021 to help employers comply with federal anti-discrimination laws in reopening the workplace. The EEOC updated its Technical Assistance Q&A to address important topics on the forefront of employers’ minds as employees are getting vaccinated and a return to normalcy seems possible. The EEOC also posted a resource for employees explaining how the federal anti-discrimination laws protect them during the pandemic.
The updated Q&A addresses these issues in the context of various federal anti-discrimination laws, namely, the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Genetic Information Nondiscrimination Act (“GINA”). Note that other federal, state, or local laws may also apply and require analysis beyond the EEOC’s guidance.
We briefly summarize some of the key updates to the Q&A as follows.
- Mandatory Vaccination Policies Permitted. Employers may require vaccination as a condition of physically entering the workplace, provided that the reasonable accommodations requirements of the ADA and Title VII are met. Employers should be aware that some individuals or groups may face greater barriers to vaccination. Employers may need to respond to allegations that a vaccination mandate has a disparate impact on certain protected classes. Employers with a mandatory vaccination policy should notify employees that it will consider requests for reasonable accommodations that do not impose an undue hardship on the employer, give clear guidance on who to contact to request an accommodation, and train personnel on how to recognize and process such requests.
- Mandatory Vaccination by Employer. An employer that requires vaccination by the employer or its agent may need to justify the pre-vaccination questions under the ADA. The pre-vaccination questions are likely to elicit information regarding a disability and must therefore be “job-related and consistent with business necessity.” To meet this standard, the employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and cannot be vaccinated poses a “direct threat” to the safety of the employee or others in the workplace.
- Employers May Inquire About Vaccination Status. Asking whether an employee has been vaccinated by a third party and requesting documentation of such vaccination is not a disability-related inquiry prohibited by the ADA or an improper request for genetic information under GINA. Employers must keep this information, and all employee medical information, confidential and separate from their personnel files.
- Employers May Offer Incentives for Voluntary Vaccination by Third Parties. Federal anti-discrimination laws do not prohibit or limit an employer’s ability to offer incentives (which may include penalties or rewards) for vaccination by a third party, such as a pharmacy or health care provider.
- Employers May Offer Incentives for Voluntary Vaccination by the Employer Under Certain Conditions. If the employer or its agent is providing the vaccination, the employer may offer an incentive for employees to get vaccinated. However, the incentive cannot be “so substantial as to be coercive.” A “very large” incentive may make employees feel pressured to disclose protected medical information. Employers should carefully evaluate any rewards or penalties for not getting vaccinated by the employer or its agent.
- Employers May Provide Information on Vaccination to Employees. Part K.3 of the Q&A provides resources that employers may use to educate their employees about vaccination.
The EEOC is still considering how the Center for Disease Control (“CDC”)’s recent guidance for fully vaccinated individuals, issued on May 13, 2021, impacts its recent Q&As.
We will continue to monitor these updates.