The EEOC recently issued updated guidance for employers regarding COVID-19 vaccinations and questions they raise under federal equal employment opportunity laws, such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act, including as amended by the Pregnancy Discrimination Act (Title VII). The EEOC update, which can be found on its website, was last revised on December 16, 2020, well before COVID-19 vaccinations became widely available.
In its update, the EEOC reaffirmed and clarified several matters relevant to employers concerning employee COVID-19 vaccinations. The main takeaways are summarized below.
Employers May Still Require COVID-19 Vaccination
The EEOC reaffirmed federal EEO laws do not prevent employers from requiring employees who physically enter the workplace be vaccinated for COVID-19. Requiring the vaccine is still subject to providing reasonable accommodations (because of a disability or a sincerely held religious belief, practice or observance), provided the accommodation would not pose an undue hardship on the employer’s business.
The notion of employer-mandated vaccination was reinforced on June 12, 2021, by a federal district court in Texas. In that case, the court upheld a hospital’s COVID-19 vaccination requirement for all its employees. Specifically, Houston Methodist Hospital had announced a policy requiring all its employees to receive a COVID-19 vaccination by June 7, 2021, or be terminated. Over 100 hospital employees brought suit against their employer in federal court, arguing the hospital’s vaccination mandate was unlawful. The court dismissed the lawsuit, finding the vaccination requirement was legal and did not violate Texas law (the court found the only relevant law, which the mandate did not violate, was Texas’s prohibition on terminating employees for refusing to commit a criminal act). The court also noted the vaccination requirement did not violate public policy and cited the EEOC’s May 28, 2021, guidance in its order dismissing the lawsuit. The court noted the guidance, while not binding, provided “employers can require employees be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination.”
The EEOC’s guidance makes clear an employer may adopt safety standards that require COVID-19 vaccination if the standards are job-related consistent with business necessity. However, if an employee cannot meet the employer’s safety standard because of a disability, the employer cannot require the employee to be vaccinated unless the employee would pose a “direct threat” to the health or safety of the employee or others in the workplace due to not being vaccinated.
This “direct threat” analysis must be an individualized assessment of the employee’s ability to safely perform the essential functions of the job and consists of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The employer should rely on the most current medical knowledge about COVID-19, including such factors as the level of community spread at the time of the analysis, and should also take into account the employee’s work environment, including factors such as whether the employee works alone and inside or outside, the frequency and duration of interaction the employee’s direct interaction with others, and the percentage of vaccinated employees already in the workplace.
The EEOC notes “statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee” for purposes of the direct threat analysis. Even if the employee is determined to be a “direct threat,” the employer must then assess whether a reasonable accommodation would reduce or eliminate the threat, and, if so, must accommodate the employee.
Regarding religious accommodation requests, the guidance explains the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar. The EEOC states employers should generally assume a request for religious accommodation is based on a sincerely held religious belief, practice, or observance. But, if the employer knows of any facts that give it an objective basis to question the religious nature or the sincerity of a stated religious belief or practice, the employer may request additional supporting information from the employee.
Further, an employer does not have to accommodate an employee’s sincerely held religious beliefs if doing so would pose an “undue hardship.” Courts have defined that to mean having more than a minimal cost or burden on the employer. The guidance points out this is an easier standard for employers to meet compared to the ADA’s undue hardship standard. In their undue hardship analysis, employers may consider, among other things, the ratio of employees in the workplace who are already partially or fully vaccinated and the extent of the employee’s contact with non-employees.
The guidance also highlights that employees who are not vaccinated because of pregnancy may be entitled under Title VII to accommodations made available based on disability or religion to other employees.
Employers should consider all options before denying an accommodation request and may rely on CDC recommendations in deciding if any effective accommodations exist that pose no undue hardship. Ultimately, best practices when an employer introduces a COVID-19 vaccination policy and requires documentation or other confirmation of vaccination includes notifying all employees the employer will consider requests for accommodation based on disability or religion on an individualized basis. Employers should remain be mindful of any disparate impact any vaccine requirement may pose on their employees or of imposing a vaccination requirement that treats employees differently based on protected categories without a legitimate non-discriminatory reason and should discuss the same with counsel.
Examples of Accommodations
The EEOC gives examples of reasonable accommodations, including without limitation having a non-vaccinated employee wear a face mask, work at a social distance from others in the workplace, work a modified shift, telework, or reassignment to another position.
Employers Requiring Documentation or Other Confirmation of COVID-19 Vaccination
The EEOC reiterates an employer may request from its employees documentation or other confirmation of vaccination administered by a third party. The EEOC notes this inquiry is not a disability-related inquiry under the ADA nor does requesting this information violate GINA.
Employer Incentives for Employees to Receive COVID-19 Vaccination
Employers may also offer incentives to employees who receive COVID-19 vaccines from third parties and provide the employer with documentation or other confirmation of receiving the vaccination.
An employer may also incentivize (through both rewards and penalties) receiving a COVID-19 vaccination through the employer or the employer’s agent so long as the incentive is “not so substantial as to be coercive.” The guidance notes this is because vaccinations require employees to answer disability-related screening questions prior to the administration of the vaccine, and, therefore, a “very large incentive” could pressure employees to disclose protected medical information they otherwise would not. This limit on incentives does not apply, the EEOC clarifies, if the employee obtains the vaccine from a third-party provider (i.e. not from the employer or the employer’s agent).
Incentivizing an Employee’s Family Members
Employers may also offer incentives to employees for documentation or other confirmation that the employee or the employee’s family members received a vaccination from a third-party provider, but the employer may not offer incentives to the employee’s family member to receive a vaccination from the employer, itself or the employer’s agent. The guidance clarifies that is because the pre-vaccination medical screening questions include questions about family medical history, which would be considered genetic information regarding the employee, and GINA prohibits employers from providing incentives in exchange for genetic information.
Employee COVID-19 Vaccination Information Confidential under the ADA
Employers must maintain the confidentiality of employee medical information, including documentation or confirmation of an employee’s COVID-19 vaccination. Such documentation or confirmation of vaccination should be maintained separately from the employee’s personnel files.
Administration of COVID-19 Vaccine by Employer or Employer’s Agent
Vaccinating an Employee
An employer or an employer’s agent may administer a COVID-19 vaccine to employees. This is because administration of a COVID-19 vaccine is not considered a “medical examination” under the ADA. However, the guidance stresses that pre-vaccination screening questions would likely elicit disability-related information, and the responses should, like vaccination status, be treated as confidential information.
Employers should also be aware that the employees receiving a COVID-19 vaccine administered by the employer or by the employer’s agent may challenge the mandatory pre-vaccination inquiries. If challenged, the employer must demonstrate that the questions are “job related and consistent with business necessity.” To meet this standard, the employer needs to have a reasonable belief, based on objective evidence, that an employee who does not answer the pre-vaccination questions, and for that reason cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.
If the employer offers to vaccinate its employees but does not mandate the COVID-19 vaccine, the requirement that pre-vaccination screening questions be “job-related and consistent with business necessity” does not apply, but an employee’s decision to answer screening questions must remain voluntary. Also, an employer that offers voluntary vaccinations to employees must comply with federal employment nondiscrimination laws by not, for example, only offering the vaccinations to certain employees based on national origin or another protected status.
Vaccinating an Employee’s Family Members
The guidance clarifies that so long as no incentive is offered to an employee’s family members, the employer or the employer’s agent may still administer a COVID-19 vaccination to the employee’s family members. In that case, the employer must ensure there is no requirement that an employee’s family members get vaccinated and must not penalize employees whose family members decline to be vaccinated.
As with all information concerning vaccinations, the employer must ensure all medical information received from family members is only used to provide the vaccination and is otherwise kept confidential and away from anyone involved in making employment decisions concerning the relevant employee. Additionally, the employer must obtain “prior, knowing, voluntary, and written authorization” from the employee’s family member before the family member is asked any questions about his or her medical conditions prior to receiving the vaccine from the employer or the employer’s agent.
There are many considerations for employers regarding whether and how to require COVID-19 vaccinations for employees as opposed to encouraging and incentivizing vaccination. This is an area that continues to develop, and the EEOC likely will issue further updates as new issues arise and the CDC issues updated guidance itself regarding best practices in dealing with COVID-19. For example, the EEOC itself notes it is still considering the impact of the May 13, 2021, updated CDC guidance advising fully vaccinated individuals be exempted from masking requirements.
Employers seeking to ensure compliance with best practices should keep abreast of additional guidance from the CDC and the EEOC and consult with their employment law counsel in navigating these evolving issues.