EEOC Issues Updated Guidance on COVID-19 Vaccinations
As addressed in our prior client alert, earlier this year, the Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers on how the COVID-19 vaccine interacts with federal anti-discrimination laws, such as the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII. Employers have been eager for additional direction from the EEOC as the vaccine has become more widely available, and many employees have begun returning to the office. Last Friday, the EEOC issued additional guidance on these topics.
Mandatory Vaccination Policies
The updated guidance confirms that employers will not violate the federal anti-discrimination laws by requiring employees who physically enter the workplace to be vaccinated for COVID-19. This applies to policies where employees are vaccinated by the employer or its agents or where the employee is vaccinated by a third party. However, employers still must engage in the reasonable accommodation process under Title VII and the ADA, and be mindful of other applicable EEO laws as well as other non-EEO limitations, discussed below.
Reasonable Accommodations
Employers may recall from our previous alert that if the vaccine requirement would exclude someone with a disability, the employer must show that the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others, and that threat cannot be eliminated or reduced by reasonable accommodation. Specifically, an employer may not exclude such an employee from the workplace unless there is no way to provide a reasonable accommodation to eliminate or reduce this risk to an acceptable level.
The updated guidance does not provide any additional clarity on what an acceptable level of risk may be, but it does provide a list of potential reasonable accommodations in these scenarios. These accommodations include: requiring the employee to wear a mask; having an employee work a staggered shift; providing for changes in the work environment such as improving ventilation systems or limiting contact with other employees and non-employees; permitting telework if feasible; or reassigning the employee to a vacant position in a different workspace. Employees who cannot get the vaccine due to a disability must let the employer know that they will need an exemption from the requirement or a reasonable accommodation. However, employees are not required to specifically use the words “reasonable accommodation,” so managers should be advised to direct any employee concerns regarding vaccination to Human Resources who can follow the appropriate process.
The employer and employee must engage in the interactive process to determine an appropriate reasonable accommodation. If there is no reasonable accommodation that will allow the employee to be physically present without posing a direct threat, the employer must consider telework as an accommodation and, as a last resort, reassignment to another position if possible. However, employers should exercise caution in determining that an employee constitutes a “direct threat” to the health and safety of the employee or others in the workplace such that they need to be excluded from the workplace. The recent guidance stresses that whether an unvaccinated individual poses a “direct threat” requires an individualized and fact-specific analysis which should take into consideration the most current medical knowledge about COVID-19, the level of community spread, and the number of vaccinated individuals in the workplace, among other factors.
Employers may also encounter cases where an employee who is fully vaccinated for COVID-19 requests an accommodation for an underlying disability because of a continuing concern that the employee faces a heightened risk of severe illness from a COVID-19 infection, even though they are vaccinated. According to the guidance, an example of this kind of scenario is when an employee is immunocompromised and may still require a reasonable accommodation because the vaccine does not provide them with the same measure of protection as it does to other vaccinated individuals. In these cases, the guidance advises employers to engage in the interactive process to determine if there is disability-related need for a reasonable accommodation.
Employers must also provide a reasonable accommodation under Title VII for an employee’s sincerely held religious belief, practice, or observance that prevents them from getting a COVID-19 vaccine, unless it would pose an undue hardship. Religious accommodation requests that seek to wait until an alternative version or specific brand of the COVID-19 vaccine is available to the employee should be treated in the same manner as other accommodation requests. Much like a reasonable accommodation for a disability, an employer should consider all reasonable accommodations in these cases including telework and, as a last resort, reassignment.
Finally, employees who are pregnant may also seek job adjustments or may request exemptions from a COVID-19 vaccination. The guidance directs employers to ensure that these employees are not being treated differently from other employees similar in their ability or inability to work. Pregnant employees may also be entitled to job modifications such as telework, changes to work schedules or assignments, and leave. Supervisors, managers, and human resources personnel should know how to handle such requests to avoid disparate treatment.
Other Notes of Caution
Although the guidance approves of mandatory vaccination from a federal employment discrimination standpoint, it makes clear that a mandatory vaccination policy cannot be applied in a manner that treats employees differently based on a protected characteristic unless there is a legitimate non-discriminatory business reason for doing so. The updated guidance recognizes that a mandatory vaccination policy could also be the basis for allegations of disparate impact based on race, color, religion, sex, or national origin under Title VII, and it cautions employers that certain demographic groups may not have ready access to the vaccine as compared to others and will be more likely to be negatively impacted by this requirement.
Additionally, the guidance notes that the vaccines were granted Emergency Use Authorization Authority by the FDA. Although various individuals have sought to challenge vaccine mandates in the courts given the current EUA status of the vaccines, the EEOC avoids the EUA issue entirely, noting that it “is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.” The EEOC further notes that various federal, state, and local laws and regulations may govern the issue of COVID-19 vaccination. As such, employers should consult with counsel before implementing a mandatory vaccination policy as there are a number of other considerations that may come into play aside from the EEOC’s guidance.
Protecting Confidential Information
Whether or not the employer mandates vaccination, employers may wish to understand the vaccination status of its employees (or may be required to do so depending on applicable law). The EEOC has previously stated that asking about an employee’s vaccination status is not a medical inquiry; nonetheless, the recent guidance has reiterated that under the ADA, an employee’s COVID-19 vaccination status is confidential medical information. This confidentiality requirement applies regardless of where an employee received the vaccination. Therefore, while the EEOC would not prevent employers from requiring employees to show documentation of their vaccination, like any other medical information under the ADA, this information must be kept confidential and stored separately from the employee’s personnel files.
As discussed in our previous client alert, the screening questions that must be asked immediately prior to administering the vaccine are subject to ADA restrictions on making disability-related inquires and must be “job-related and consistent with business necessity.” The updated EEOC guidance does warn employers that inquires of this nature will expose them to challenges from employees and as such the employer needs to be able to justify these inquires under the ADA. If, however, an employer offers to vaccinate its employees on a voluntary basis, the employer does not need to show that the pre-vaccination questions are job-related and consistent with business necessity, but the employee’s decision to answer these questions must be voluntary. Any medical information obtained during an employer vaccination program must be kept confidential. The guidance further clarifies that GINA should not be implicated by the screening questions as the first three vaccines to receive Emergency Use Authorization from the FDA do not seek family medical history or any other type of genetic information.
The updated guidance also provides that employers can offer to administer the vaccine to the family members of its employees without implicating GINA if they follow certain procedures. The vaccination of family members must be voluntary, and employees cannot be penalized if their family members decide not to receive the vaccine. Employers also must ensure that all medical information obtained from family members during the screening process is used only for the purposes of the vaccine, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees. And lastly, employers must obtain prior, knowing, voluntary and written authorization from a family member before asking any questions about his or her medical conditions.
Employer Incentives for COVID-19 Vaccinations
The updated guidance also provides some limited direction on incentives offered to employees for voluntarily receiving the COVID-19 vaccine. According to the guidance, employers may offer an incentive to employees to voluntarily receive the vaccine from the employer or its agent if the incentive, including rewards and penalties, is not so substantial as to be coercive. The guidance does not provide further clarity on what rewards and penalties would be considered coercive, which is disappointing given the recent withdrawal of the proposed wellness regulations and the continued uncertainty surrounding what may constitute an appropriate incentive. Importantly, the “coercive” limitation does not apply when an employer offers an incentive for employees to voluntarily provide confirmation that they received a COVID-19 vaccination elsewhere, because that inquiry is not considered a disability-related inquiry under the ADA, nor is the fact that someone received a vaccination elsewhere protected under GINA. The guidance does not address whether an employer needs to provide some other avenue to receive an incentive for an individual who cannot get the vaccine due to a religious or disability-based need.
An employer may not offer incentives to an employee for a family member’s vaccination by the employer or the employer’s agent. This kind of incentive violates GINA because the employer would be required to ask the family member pre-vaccination medical screening questions, which include medical questions about the family member and lead to the employer’s receipt of genetic information in the form of family medical history of the employee. As discussed above, an employer can still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance.
Employers may also generally promote vaccination by providing employees and their family members with information to educate themselves about COVID-19 vaccines. This may include providing information that raises awareness about the benefits of vaccinations and addresses common questions and concerns about the vaccine.
Takeaways
Employers who are considering implementing mandatory as well voluntary vaccination policies or programs should carefully weigh the risks of such a program and ensure that such a policy or program is compliant with the EEO laws discussed above, as well as various state and local requirements. Employers should also be mindful of the continued uncertainty surrounding the impact of the EUA status of the vaccines on employer mandates. Employers who do decide to mandate the vaccine must continue to conduct the reasonable accommodation analyses on a case-by-case basis.
Employers should also review any incentives or promotional materials they may be using or are considering related to COVID-19 vaccines. Employers have some flexibility in the materials they provide to raise awareness and promote the vaccine, but the requirements for incentives may be more stringent depending on how the incentive is structured. Employers who have questions regarding mandating or encouraging vaccines in the workplace should contact Caroline Secola at csecola@fglawllc.com or any other attorney at the Firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.