Employers who have been nervous about implementing or enforcing new vaccination policies should be relieved to see the updated technical guidance issued on May 28, 2021, by the Equal Employment Opportunity Commission (“EEOC”). The guidance addresses issues related to vaccination programs, particularly with regard to reasonable accommodations and employer incentives (including both rewards and penalties).
Regarding reasonable accommodations, the EEOC confirmed that employers are obligated to engage in an interactive process to identify reasonable accommodations with employees who inform their employer they cannot receive vaccinations due to disabilities or sincerely held religious beliefs. To help guide employers, it offered several resources for accommodation discussions and provided examples of possible reasonable accommodations, including wearing face masks, social distancing, working modified shifts, periodic COVID-19 testing, teleworking, or reassignment. The EEOC also noted that this obligation can extend to employees who are fully vaccinated, since some immunocompromised individuals may not benefit from vaccinations as much as others. In complying with these requirements, employers should keep in mind that it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
The EEOC also confirmed that employers may offer incentives to employees who choose to receive COVID-19 vaccines under a voluntary vaccination policy (and/or penalties to those who do not). However, the EEOC also warned that any incentive to receive a vaccine administered by the employer or its agents must “not [be] so substantial as to be coercive,” because pre-vaccination screening inquiries are likely to elicit information about a disability and therefore must be job-related and consistent with business necessity if asked by an employer. The guidance offers little insight into what kinds of incentives would cross the line into coercion. This cap on incentives does not apply to employer-provided incentives for employees to receive vaccines from third parties. In either case, employers administering vaccination programs should know that both pre-vaccination screening information and documentation showing vaccination status are considered employee medical information under the Americans with Disabilities Act and must be kept confidential and stored separately from the employee’s personnel files.
Apart from reasonable accommodations and incentives, the updated guidance also gave useful analysis on several other topics. For employers looking to give their vaccination policies a shot in the arm, it may be worthwhile to give this guidance a read.
