Summer vaccinations: EEOC releases updated guidance on vaccination incentives 

Eversheds Sutherland (US) LLP

Just in time for the start of the summer, the Equal Employment Opportunity Commission (EEOC) has provided updated guidance on employer practices relating to COVID-19 vaccinations, including much-needed guidance on vaccine incentives. US employers have been considering a number of different issues in determining how best to encourage their employees to be vaccinated for COVID-19. This latest guidance will help employers refine their approaches, particularly as CDC guidance and state restrictions evolve in a push toward a “return to normal.” This legal alert addresses the EEOC’s guidance on vaccine mandates, employers providing vaccines directly to their employees, and vaccine incentives.

As background, the EEOC oversees the employer-facing portions of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), as well as Title VII of the Civil Rights Act of 1964. GINA prohibits employers from discriminating against employees on the basis of genetic information, and the ADA, among other things, prevents employers from requiring medical examinations or gathering medical information about current or prospective employees in an involuntary manner. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

Mandating vaccines

The EEOC has previously indicated that employers may mandate that employees be vaccinated in order to enter a job site or other physical workspace. In the recent guidance, the EEOC again reiterates this, but reminds employers that if they choose to mandate the vaccine they will need to provide reasonable accommodations under Title VII and the ADA. Employees with disabilities or sincerely held religious beliefs can request a reasonable accommodation, which employers should provide unless the accommodation would “pose an undue hardship on the operation of the employer’s business.” Pregnant employees may also be entitled to accommodations.

ESsentials: The EEOC provides several examples of “reasonable accommodations” in the context of COVID-19 vaccinations, including teleworking or shift modification. Employers may also require an employee to take certain protective steps, such as wearing a mask, or undergoing regular COVID-19 testing. Additionally, the EEOC’s addition of mask wearing as an example of a reasonable accommodation seems to suggest that the EEOC may have provided this example for cases in which employers follow CDC guidance and permit that fully vaccinated people not wear masks.
ESsentials: Employers should remember to notify employees of their right to a reasonable accommodation for disability, pregnancy, or religious exemption, and should include the notification as part of the communication of any COVD-19 vaccination policy.

Employers may be able to mandate vaccination for safety-related reasons, but should keep in mind that if an individual cannot be vaccinated because of a disability, the employer cannot require that employee be vaccinated unless they can “demonstrate the individual would pose a ‘direct threat’ to the health or safety or the employee or others in the workplace.” The EEOC’s guidance describes several factors employers may look to in order to determine if an unvaccinated employee poses a “direct threat” in the context of COVID-19, including using “reasonable medical judgment that relies on the most current medical knowledge about COVID-19.”

Providing vaccines

In the EEOC’s guidance to employers who are either providing the vaccine themselves or through an agent, the fundamental question is whether the vaccine is mandatory or voluntary. When an employer requires employees to be vaccinated by the employer, the ADA’s restrictions on disability-related inquiries and medical examinations apply. In particular, the screening questions asked as part of the administration of the vaccine are considered to be disability-related inquiries.

ESsentials: The EEOC does not consider the administration of the vaccine itself to be a “medical examination” because the act of vaccinating someone does not involve asking for information about the employee’s health.

The EEOC guidance reminds employers that, under the ADA, any disability-related inquiries are required to be “job-related and consistent with business necessity.” As such, the employer would need to reasonably believe that an employee who refuses to answer screening questions and cannot be vaccinated would “pose a direct threat to the employee’s own health or safety to the health or safety of others in the workplace.”

ESsentials: Whether an employer mandates that employees be vaccinated by the employer’s agent or by the employer directly, the employer will be required to do the same “direct threat” analysis.

Voluntary vaccinations that are offered by an employer or its agent are not subject to the same rigorous analysis, and do not need to be job-related or consistent with business necessity. The EEOC also noted that requesting documentation or proof of COVID-19 vaccination from an employee is not a “disability-related inquiry” and employers are free to request this information and supporting documentation. Note that any documentation received should be kept confidential and separate from employees’ files, as discussed below.

Incentivizing vaccines

Employers administering wellness programs have been working to ensure that any wellness incentives that are provided are “voluntary” under the ADA and GINA for quite some time. In the waning days of the Trump Administration, the EEOC released two notices of proposed rule-making on the voluntariness of wellness program incentives, but these rules were withdrawn by the Biden administration. The details of the changing rules are outside the scope of this legal alert; however, the larger framework for wellness programs should be front of mind for employers as they consider whether a particular incentive is “voluntary.”

ESsentials: Employers seeking a simple “rule of thumb” may consider referring to the incentive rules issued under the Affordable Care Act as a guide.

The EEOC’s latest guidance makes clear that employers can offer incentives to employees who voluntarily provide documentation to prove they were vaccinated by an outside group (such as a pharmacy or public health department). These types of requests are not “disability-related inquiries” under the ADA, therefore, employers can offer incentives to employees to provide this information (but must keep the information confidential, as outlined below). Likewise, employers may offer incentives to employees who voluntarily provide documentation to prove that their family members were vaccinated by a third party, as this is not a request for genetic information under GINA.

If the employer is offering the vaccine on a voluntary basis through an on-site clinic or a third-party service, it can still provide incentives, but these incentives cannot be “so substantial as to be coercive.” This is because the pre-vaccination screening questions are disability-related inquiries. While an employer providing vaccine incentives to their employees does not implicate GINA, an employer cannot offer incentives to employees in exchange for the employee’s family members getting vaccinated by the employer, as this would violate GINA. If an employer wishes to provide vaccines to family members, it will need to ensure all medical information received is kept confidential. Further, it must receive prior, knowing, voluntary, and written authorization from the family member before asking for any medical information.

ESsentials: As employers consider whether and how to provide vaccine incentives to their employees, it is important to remember that the EEOC guidance does not touch on tax issues. If the incentives are provided outside of a health plan (such as providing employees with a cash bonus for being vaccinated) then the incentives may be taxable compensation to the employees. Depending on the type and amount of incentive, it may be a de minimis fringe benefit and exempt from tax. Cash incentives (including cash equivalents), however, are always treated as taxable compensation.

Confidentiality

When many individuals think about keeping medical information confidential, they think about HIPAA. HIPAA, however, only applies to covered entities (health plans, health providers, medical clearinghouses, and their business associates). Most employers who receive employee medical information (such as vaccine records) from sources other than the employer’s health plan are not receiving HIPAA-protected health information and will not need to comply with HIPAA as part of this process. But employers cannot ignore confidentiality just because HIPAA does not apply, and the EEOC guidance reminds employers that, under the ADA, employee medical data needs to be kept confidential and stored separately from an employee’s personnel files.

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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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