On May 28, 2021, the EEOC updated its technical assistance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This update follows the EEOC’s first hearing, convened to explore the pandemic’s impact on civil rights. The technical assistance addresses numerous comments received at the hearing and outlines some intuitive (and counterintuitive) guidance for employers.
The updated guidance includes the EEOC’s reminder that employers must be aware of disparate impacts arising from vaccine mandates. This not-so-subtle caution reminds employers that vaccine mandates come with significant risk of litigation. If employers offer vaccines only for certain employees, the employer should be careful to avoid discriminatory implementation or results.
For employers looking to encourage employees to get vaccinated, the EEOC offers three suggestions: 1) provide education programs to raise vaccine awareness; 2) disseminate information about where employees can obtain free vaccines; and 3) implement incentive programs. Employers considering incentive programs must be particularly cautious, as these programs present complex concerns not limited to EEO laws. These “incentive” programs must be voluntary. When an incentive is provided and the employer is the one giving the vaccine, the incentive must not be “substantial” or “coercive.” However, when an incentive is offered by an employer for employees who voluntarily submit proof of vaccinations administered by third parties, incentive limits are not an issue. While an employer may offer incentive-free opportunities for family members to receive vaccinations, employers may not offer incentivesto encourage family members to receive the vaccine.
The EEOC also provided guidance on what to do when an employee says they cannot, or will not, get the vaccine. Remember: not everyone who declines vaccination is entitled to an accommodation. When objections arise, employers must ensure they are seriously engaged in the interactive process for religious and disability-related requests for accommodation. Notably, employers working with pregnant workers are reminded they must ensure these pregnant employees are not being treated differently when compared to other employees “similar in their inability to work.”
When considering what generally constitutes a reasonable accommodation, the EEOC provided a list of examples, including: face masks, modified shifts, social distancing, periodic COVID tests, opportunity to telework, or reassignment. In other words, all the tools employers have used to operate their businesses during the pandemic. When determining whether an accommodation constitutes an undue hardship, employers can consider, among other things, the number of employees returning to work and the extent of employee contact with non-employees whose vaccination status is unknown.
While the guidance provides an outline of accommodation considerations, this process is necessarily fact-specific, based on the individual employee and their job duties. Although religious and disability-related accommodation laws utilize some of the same language, the mandates differ significantly.
Other points of note include reminders that: 1) an employee’s vaccine status must be kept confidential, like all medical records; and 2) employers who themselves give vaccines (such as hospitals or other medical facilities) must also navigate the ADA’s restrictions on disability-related inquiries.
The above summary may be useful for high-level issue spotting, but employers are well advised to carefully review all the guidance available. This is no easy task, as many states also have weighed in on what employers can and cannot do. When considering enacting any form of a COVID vaccination mandate or incentive program, as well as navigating other pandemic-related decisions, employers should consult with experienced counsel to reduce the risk of costly litigation.