On December 14, 2020, less than one year after most of the world grinded to a halt as a result of the COVID-19 pandemic, the rollout of vaccines began in the United States. Since then, through efforts at the federal and state levels to end the pandemic, slightly more than 40% of Americans are now fully vaccinated. Employers have faced unique struggles as they respond to shifting standards for masking, social distancing, and now, with the widespread vaccine rollout, employee vaccination policies. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers with important new information designed to help employers navigate these vaccination-related challenges.
The updated guidance provides information regarding several topics including mandatory employee vaccination requirements, voluntary workplace vaccination programs, vaccination incentive programs, the relationship between Title VII of the Civil Rights Act of 1964 (Title VII) and COVID-19 vaccines, and the intersection of the Genetic Information Non-discrimination Act (GINA) and COVID-19 vaccines.
With the increased availability of vaccines, many employers are seeking to end teleworking programs and bring employees back into the office. At the forefront of many conversations is the question of whether employers may require those returning to work to be vaccinated against COVID-19. According to the EEOC, there is no law preventing employers from doing so, but it’s important for organizations to ensure they are mindful of any reasonable accommodation issues that may crop up as a result. Employers should also be aware of any potential disparate impact a vaccine requirement might have on employees who face greater barriers to access to vaccines. Organizations considering this type of policy should ensure managers are well-trained on how to handle vaccination-related accommodation requests and other related issues.
Other employers are seeking to provide vaccinations to their employees through direct efforts of the company. The new EEOC guidance makes it clear that employers may do so and may ask pre-vaccination screening questions (that may become disability-related questions), so long as the opportunity to receive a vaccine is completely voluntary for employees. The EEOC guidance reminds employers to keep any information obtained from a voluntary vaccination program confidential and to avoid taking any adverse action against an employee who opts out of the program. Employers may also offer incentives to employees who opt into this type of program so long as those incentives are not so substantial as to be coercive. Incentive policies are also permissible when the vaccines are not being provided through the employer, and in that circumstance the “substantial” limitation does not apply.
Along with the new information provided above, the EEOC also updated the questions and answers to remind employers of the importance of considering all facets of Title VII and GINA when addressing any issue related to COVID-19 vaccinations. The COVID-19 pandemic is ever-changing, but the new technical assistance guidance from the EEOC will likely help employers navigate this new territory.
The updates to the EEOC Technical Assistance Questions and Answers were prepared prior to the Centers for Disease Control’s updated guidance for fully vaccinated individuals which was released on May 13, 2021. The COVID-19 pandemic is a dynamic situation and organizations should ensure they work closely with counsel to stay up-to-date in this area.