Friday (May 28, 2021), the Equal Employment Opportunity Commission (“EEOC”) issued its long-awaited Guidance on mandatory vaccinations in the workplace. In the new Guidance, the EEOC answers many questions about when employers may require vaccines and under what circumstances employers may provide incentives to employees who get vaccinated. Here are some of the highlights of the Guidance.
May an employer require all of its employees who enter the workplace to be vaccinated?
Federal anti-discrimination laws do not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. This, however, is subject to several caveats. First, employers are required to provide reasonable accommodations under the Americans With Disabilities Act (“ADA”) and/or Title VII of the Civil Rights Acts for those employees who, because of a disability, or a sincerely held religious belief, practice or observance, and/or pregnancy, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship to the employer.
Additionally, as with any employment policy, employers that have a vaccination requirement must ensure that it is neither implemented in a way that discriminates against a particular protected category (such as only requiring employees over the age of 65 to be vaccinated), nor in a way that has a disparate impact on a protected category of employees. The EEOC cautions that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccine than others, some employees may be more likely to be negatively impacted by a mandatory vaccination requirement.
What about employees who claim to have disabilities that prevent them from being vaccinated?
As discussed in more detail by my colleague Mark Sommaruga, while the EEOC has now made clear that an employer may require employees entering the workplace to be vaccinated for COVID-19, an employer is also required to provide a reasonable accommodation to an employee who is unable to receive a vaccine because of a disability as long as the unvaccinated employee does not pose a direct threat to the workplace. Such accommodations may include allowing an unvaccinated employee to wear a face mask, work socially distanced from others, work a modified shift or get periodic testing for COVID-19. Additionally, the EEOC suggests that employers may make changes to the workplace such as increasing ventilation, allowing the employee to telework, or reassigning the employee to a different position. The EEOC advises that employers “may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.”
Mandatory Employer-Provided Vaccines versus Voluntary Employer-Provided Vaccines
The EEOC draws a distinction between situations where (1) an employer requires an employee to receive a vaccine from the employer, (2) an employer provides access to vaccines in the workplace for those who choose to be vaccinated at work, and (3) an employer requires an employee to provide proof of vaccination regardless of where the employee was vaccinated.
While the actual administration of the vaccine is not considered a medical examination, an employer that requires an employee to get the vaccine directly from the employer or the employer’s agent would be asking medical questions of the employee – by virtue of the screening questions required before administering a vaccine – that would require the employee to provide medical and/or disability-related information. The employer that asks these questions, if challenged, would need to prove that they are job-related and consistent with business necessity. This requirement disappears when the employer requires proof of vaccination, but gives its employees the option of either receiving the vaccine through the employer or providing proof that the employee received the vaccine elsewhere.
What is the employer’s obligation if a fully vaccinated employee requests an accommodation for an underlying disability because of a continuing concern that the employee has a heightened risk of severe illness from COVID-19 infection?
It is unclear at this time whether individuals with certain medical conditions, such as being immunocompromised, receive the same measure of protection from the COVID-19 vaccines as other vaccinated individuals. Being vaccinated, therefore, does not obviate the need to engage in the interactive process with a vaccinated employee who requests a reasonable accommodation for a disability. If there is a disability-related need for a reasonable accommodation, it must be provided unless to do so would be an undue hardship.
The EEOC expands on its guidance regarding an employer’s obligation to provide a reasonable accommodation to an employee’s sincerely held religious belief, practice, or observance that prevents the employee from getting a COVID-19 vaccine, unless such accommodation poses an undue hardship to the employer. The EEOC seems to accept that it could be reasonable for an employee, for religious reasons, to insist on waiting to be vaccinated until an “alternative version or specific brand of COVID-19 vaccine is available to the employee.” As a reminder, “undue hardship” in the case of religious accommodation is an easier standard to meet than under the ADA. In the religious context, the employer need only show that the requested accommodation would have “more than minimal cost or burden to the employer.”
An employee who chooses not to be vaccinated due to pregnancy is entitled to the same accommodations provided to other employees with similar ability and/or inability to work for non-pregnancy related reasons.
Employers are cautioned that any information received from an employee through a mandatory vaccination program – and any information about whether an employee is vaccinated – is confidential medical information and should be kept separate from the employee’s personnel file. Additionally, under the ADA, it is illegal to disclose whether an employee is receiving a reasonable accommodation.
Employer Incentives for COVID-19 Vaccinations Under the ADA and GINA
Again, the EEOC distinguishes between employer-administered vaccinations and employees requested to provide proof of vaccination regardless of where the vaccination occurred. An employer will not run afoul of the ADA and/or Title VII by providing an incentive to employees who voluntarily provide documentation or other confirmation of a vaccination received in the community. To the extent an employer offers an incentive for employees to voluntarily receive an employer-administered vaccination, incentives may only be provided (including both rewards and penalties) if the incentive “is not so substantial as to be coercive.” The thought is that because employer-administered vaccinations require the employee to answer pre-vaccination medical/disability related questions, a large incentive could be seen as coercing an employee to reveal confidential medical information.
An employer may not, however, provide incentives to employees in exchange for family members’ receipt of a vaccination from the employer or its agents, because the pre-screening questions of a family member would lead to the employer’s receipt of genetic information in the form of family medical history of the employee, and would thus violate the Genetic Information Nondiscrimination Act (“GINA”). The guidance does not answer the question whether the employer could provide incentives to employees who show proof that close family members have been vaccinated elsewhere.
So – – What Questions Are Left Unanswered?
The Guidance is clear that it was drafted prior to the CDC’s issuance of its revised guidelines on May 18, 2021, and that the EEOC, therefore, did not take those revised CDC guidelines into account in the Guidance. Still missing from the Guidance is what would be considered an acceptable risk of exposure to COVID-19 in the workplace, especially with the new CDC guidelines suggesting that vaccinated people no longer need to wear masks in most indoor settings unless required by the business. The EEOC has provided little in the way of guidance as to when an unvaccinated employee can be considered a risk or safety threat to the employer, coworkers, or others that cannot be ameliorated by other protective measures. The point where an employer can claim that an unvaccinated employee poses a direct threat is likely to move as more people get vaccinated and more is learned about the disease. It may also be different depending on the workplace. For example, an unvaccinated direct-care employee in a nursing home may be considered a direct threat to the safety of the residents, but the same employee in an office setting may not be considered a direct threat.
As to incentives, at least two questions are left unanswered. Most importantly, the Guidance does not discuss whether providing vaccine incentives to employees implicates HIPAA and/or ERISA. Secondly, the Guidance does not answer the question as to when an incentive for an employer-provided vaccination would be considered large enough to be coercive. Employers considering providing anything more than a de minimis vaccine incentive would be well-advised to discuss this with their attorneys prior to making implementing any incentive programs.