EEOC Provides Eagerly-Awaited Guidance to Employers on COVID-19 Vaccines (Including Incentives)
By Fiona W. Ong - Shawe Rosenthal LLP
May 28, 2021
As the COVID-19 vaccine has become freely available, employers have struggled with workplace vaccination protocols in the context of compliance with anti-discrimination laws, including the Americans with Disabilities Act. On May 28, 2021, the Equal Employment Opportunity Commission updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws resource to include guidance that answers many employer questions on this topic – including the use of incentives to encourage vaccination.
Employers May Mandate the COVID-19 Vaccine. The EEOC has not changed its position that employers may require the vaccine for all employees
• Absent undue hardship, the employer must provide reasonable accommodations for those who cannot receive the vaccine because of disability or religion, The EEOC recommends that, as part of any vaccination mandate, employers make clear that they will consider reasonable accommodations for such individuals on a case-by-case basis.
• It is the employee’s responsibility to request the accommodation. Managers should be trained to recognize such requests, since the employee need not mention the ADA or Title VII or state that they are “disabled.” The employer must then engage in the required interactive discussion to determine if, in fact, the employee is disabled or has a religious need, and what reasonable accommodations are available.
• Employers may not disclose that an employee is receiving an accommodation.
• Employers need not excuse a vaccine mandate for any employee who poses a direct threat (meaning a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation) to themselves or others in the workplace because of their inability to become vaccinated. The direct threat analysis, however, is quite rigorous. Employers must first determine if there is a direct threat, and then whether there is some reasonable accommodation, such as those identified in the next section, that could reduce or eliminate the threat.
o Factors used to assess whether a direct threat exists are: (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.
o The assessment should be based on a reasonable medical judgment based on current medical knowledge about COVID-19 from the CDC and the employee’s health care provider. This may include information about community spread.
o The EEOC also states that the assessment should take into account the type of work environment, such as: working alone or with others, working inside or outside, ventilation, frequency of interaction with others, percentage of vaccinated individuals in the workplace, masking requirements, testing requirements, and social distancing capabilities.
• Fully vaccinated employees may still need reasonable accommodations for underlying disabilities, such as being immunocompromised, since the vaccine may not provide them with as much protection. Employers should engage in the interactive discussion to determine if such accommodations are required.
• A new point that the EEOC raises is the potential disparate impact (i.e. a greater effect) of a vaccine mandate on employees based on race, color, sex, religion, or national origin. Notably, some demographic groups face greater barriers to getting the vaccine, and employees in those groups should not be penalized for that circumstance.
Examples of Possible Accommodations. The EEOC provides some suggestions for reasonable accommodations for those unable to receive a vaccine because of disability or religion. It notes that such accommodations should be provided for pregnant employees as well, if provided to others. Whether or not any of these accommodations would actually be reasonable would depend on the circumstances. Some possible accommodations are:
• Social distancing from coworkers or non-employees
• Working a modified shift
• Getting periodic tests for COVID-19
• Being reassigned to another position (an accommodation of last resort, as discussed in our recent blog post)
Requiring Proof of Vaccination. The EEOC reiterates that employers may require proof of vaccination, such as presenting a vaccination card. Doing so is not a medical inquiry and therefore is not governed by the ADA – but the information provided is considered confidential medical information, which must be treated in a secure fashion, like all other employee medical information.
Employer-Administered Vaccinations. There are certain restrictions that apply if an employer administers its own vaccinations (or retains a third party to do so on its behalf).
• Vaccinations require certain screening questions.
o If the employer is mandating the vaccine, those questions are considered medical inquiries that, under the ADA, must be job-related and consistent with business necessity. The standard screening questions do not implicate the Genetic Information Nondiscrimination Act, as they do not require family medical information.
o If the employer is providing the vaccine on a truly voluntary basis, then the screening questions are not subject to the ADA’s job-related and consistent with business necessity standard (since the employee could choose not to answer the questions and not receive the vaccine).
• Any screening question responses would be confidential medical information.
• If the vaccine is obtained from a provider in the community, then neither the ADA nor GINA applies, since the employer (or their agent) is not asking the screening questions.
• Employers may offer vaccines only to certain groups of employees, but they must be careful that they are not discriminating on the basis of any protected characteristic.
Encouraging Employees to Get the Vaccine. The EEOC makes clear that employers may encourage employees to get the vaccine without violating EEO laws. Among the EEOC’s recommendations are the following:
• To help employees identify vaccination locations, the EEOC notes there are helpful websites, including vaccine.gov and through local health departments.
• The EEOC has provided a communications toolkit for employers to educate their workers on the importance of getting the vaccine. It also recommends that employers designate a management official to receive questions about accommodation or discrimination.
• Employees with little or no English-speaking skills may require assistance to obtain the vaccine, such as through the CDC’s hotline: 800-232-4636; TTY 888-232-6348.
• Employees may require assistance with transportation to and from vaccine sites, and the EEOC suggests that employers provide information on low-cost and no-cost transportation options. We note that some employers may wish to provide transportation.
• The EEOC also suggests employers provide leave to become vaccinated. Although the EEOC discusses this in the context of employees with transportation issues where transportation is only available during work hours, vaccination leave in general has been pushed by the White House, as we discussed previously. As we explained there, small employers may actually receive a tax credit for providing such leave under the voluntary extension to the Families First Coronavirus Response Act paid leave provisions.
Incentivizing Employees to Get the Vaccine. An issue of much interest has been whether and what incentives may employers provide to employees to become vaccinated. The ADA and GINA both restrict medical inquiries by employers. But the parameters of those restrictions in the context of vaccine incentives has been unclear. The EEOC has now provided some guidance.
• Employers may provide a limited incentive to employees receiving a vaccine through an employer-administered program. Such a program involves the employer asking screening questions. Under the ADA, the incentives cannot be so large as to pressure employees to reveal their medical information in response. As noted above, the screening questions do not require genetic information, so GINA does not apply.
o Employers may not provide any incentive to employees for family members receiving a vaccine through the employer-administered program. GINA prohibits employers from requesting employee genetic information, which may be revealed by family medical information, and vaccination screening questions solicit the family member’s medical information.
o Employers may provide family members with the voluntary opportunity to become vaccinated through an employer-administered program without incentives to the employee if all the following conditions are met:
o The vaccinations may not be mandatory, and there must be no penalty to employees if their family members are not vaccinated.
o All medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.
o Prior, knowing, voluntary, and written authorization from the family member must be obtained before the family member is asked any screening questions.
o Employers may provide an unlimited incentive to employees who provide proof that they received a vaccine from a community provider (e.g. health department, pharmacy, health care provider, etc.). Because the employer is not asking screening questions, the concerns about the coercive effect of a large incentive does not apply. Additionally, because requiring proof of vaccination is not a medical inquiry under the ADA and does not solicit genetic information under GINA, giving an incentive for providing such proof does not implicate either law.
o Although not specifically stated by the EEOC, based on the other information provided, we believe that the EEOC would permit employers to provide incentives to employees who provide proof that their family members were vaccinated by a community provider.
This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.
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