EEOC Updates COVID-19 Technical Guidance

Stroock & Stroock & Lavan LLP

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its ongoing technical assistance concerning employer obligations under federal anti-discrimination laws during the COVID-19 pandemic.  This updated guidance followed an EEOC hearing on April 28, 2021 which focused on the civil rights impact COVID-19 had, and continues to have, in the workplace.  Significantly, this updated guidance was prepared before the Centers for Disease Control and Prevention (CDC) issued new guidance for fully vaccinated individuals. The EEOC expanded upon its previous guidance regarding employer-mandated and voluntary COVID-19 vaccine policies, provided new guidance regarding vaccination incentives, and clarified that proof of vaccination should be treated as a medical record, but did not drastically change the landscape.

Employer COVID-19 Vaccine Mandates

Under the EEOC’s guidance, employers may require COVID-19 vaccination for employees physically entering the workplace, which for some may mean those who perform work in person must be vaccinated.  Requiring employees to be vaccinated for COVID-19 is permissible, so long as these employers provide reasonable accommodations to employees with a disability or sincerely held religious belief that may prevent them from receiving a COVID-19 vaccine, as required under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), respectively.  Employers must provide reasonable accommodations to such employees unless doing so would pose an undue hardship on the employer.  In terms of possible reasonable accommodations for unvaccinated employees, the EEOC includes getting periodic tests for COVID-19, as well as wearing a face mask, working at a social or physical distance from coworkers, working a modified or staggered shift, teleworking, or accepting a reassignment. When evaluating whether an employee who is unvaccinated due to a disability poses a direct threat, i.e., a significant risk of substantial harm to the health or safety of the employee or workplace, which cannot be reduced by a reasonable accommodation, the EEOC proposes assessing the current level of community spread, among other factors.  This suggests that a low community spread rate may impact an employer’s argument for excluding an employee who is not vaccinated due to a disability on the grounds that the employee poses a direct threat to themselves or the workplace.  

Importantly, the EEOC cautions that employers need to be aware that certain demographic groups may have more hurdles to overcome in receiving a COVID-19 vaccination than others and, therefore, may be adversely impacted by an employer vaccination policy.  According to the EEOC, employers should be prepared to respond to allegations that their vaccination policies have a disparate impact on protected classes of individuals and must ensure to apply vaccination polices equally across all employees.  Similarly, if an employer voluntarily offers vaccinations to its employees, then the employer must offer vaccinations in accordance with nondiscrimination laws by not offering vaccinations only to certain protected groups  of employees.

Proof of Vaccine Status Constitutes Medical Information

Prior to issuing its May 28, 2021 guidance, the EEOC had not opined on whether documentation  of an employee’s COVID-19 vaccination was deemed medical information.  Now, the EEOC has confirmed that such information should be treated as medical information under the ADA. Therefore, employers must maintain the confidentiality of documents submitted by employees as proof that they have been fully vaccinated and store it separately from employees’ personnel files.

Vaccine Incentives are Permissible 

For the first time, the EEOC’s technical guidance includes information concerning employer-provided vaccination incentives in compliance with federal anti-discrimination laws.  Employers are permitted to provide employees, as well as employees’ family members, with COVID-19 vaccination information for educational purposes and to raise awareness about the benefits of vaccination.  

Under the ADA and the Genetic Information Nondiscrimination Act (GINA), employers can offer incentives to employees to voluntarily be vaccinated by a third party, such as government vaccine hubs, pharmacies, or health care providers, and provide proof of vaccination from such third party.  Further, under GINA, this same standard applies to proof of vaccination of an employee’s family members. 

Likewise, under the ADA and GINA, an employer may offer incentives to employees for voluntarily receiving a vaccination administered by the employer, or its agent, so long as the incentives are not so substantial as to be coercive.  However, under GINA, an employer may not offer incentives to an employee for the employee’s family member to get vaccinated by the employer, or its agents.  Nevertheless, under GINA, employers may simply offer vaccinations to an employee’s family member, without incentives to the employee, as long as employers do not make this a requirement of its employees or penalize employees if their family members decline the vaccination, keep all medical information obtained from the screening process confidential, use this information only for the purposes of vaccination, and receive prior, knowing, voluntary, and written authorization from the family member before the family member is asked any medical condition questions throughout the vaccination process. 

Going Forward

Employers should continue to monitor the EEOC’s technical guidance for amended and additional guidance.  As noted above, this updated guidance was prepared prior to the CDC revising its COVID-19 guidance for fully vaccinated people.  Therefore, we should anticipate an additional update from the EEOC.  Employers should also continue to monitor state and local COVID-19 guidance, as the EEOC’s technical guidance is only focused on federal equal employment opportunity laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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