Sourced from NHADA Silver Partner Devine Millimet & Branch PA
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its continuing COVID-19 guidance for employers. The update attempts to clarify some of the difficult issues that employers have wrestled with since the start of the pandemic, and more recently in light of the (now) widespread availability of COVID-19 vaccinations. Key takeaways from the EEOC’s updated guidance are summarized below.
Can employers require their employees to be vaccinated against COVID-19?
The EEOC has consistently said yes: employers may mandate that their employees be vaccinated against COVID-19, subject to providing reasonable accommodations for employees with disabilities, sincerely held religious beliefs, or pregnancy. Employers should also be careful to avoid a vaccine requirement that may have a disparate impact on (or disproportionately excludes) employees based on their race, color, religion, sex, or national origin under Title VII of the Civil Rights Act (or age under the Age Discrimination in Employment Act (40+)). The EEOC suggests that reasonable accommodations for employees that cannot receive a vaccine may include wearing face masks, social distancing, periodic COVID-19 testing, modified shifts, working remotely, and reassignment. Accommodation requests should always be addressed on a case-by-case basis.
While employers may mandate their employees be vaccinated against COVID-19, the EEOC makes clear that, pursuant to the Americans with Disabilities Act (ADA), employers may not take adverse action against employees who have disabilities precluding vaccination, unless the employer can demonstrate that the unvaccinated employee poses a “direct threat” to the health and safety of the employee or other employees in the workplace that cannot be addressed through reasonable accommodation. In assessing whether unvaccinated employees pose a “direct threat” to themselves or others in the workplace, employers are encouraged to use their “reasonable medical judgment” about the employee’s disability, assessing factors such as:
- The level of community spread of COVID-19 at the time of the assessment;
- U.S. Centers for Disease Control and Prevention statements and recommendations;
- Information provided from the employee’s healthcare provider with the employee’s consent;
- The type of work environment, including factors such as:
- Whether the employee works alone or with others, or works inside or outside;
- The available ventilation;
- The frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees;
- The number of partially or fully vaccinated individuals already in the workplace;
- Whether other employees are wearing masks or undergoing routine screening and/or testing; and
- The space available for social distancing.
The “direct threat” standard is difficult to satisfy so employers should exercise caution before concluding that an unvaccinated employee poses a “direct threat” to the workplace.
Can employers offer incentives for employees to be vaccinated against COVID-19?
The EEOC says yes; there are no federal employment laws prohibiting employers from offering incentives to employees who voluntarily provide documentation confirming their COVID-19 vaccination from a third party in the community, like a healthcare clinic or pharmacy. However, employers directly providing the vaccine must avoid incentives that are considered “coercive.” Because the vaccination process requires employees to answer pre-vaccination disability-related screening questions, the EEOC explains that a large incentive could make employees feel pressured to disclose protected medical information. Thus, an incentive that is too large may run afoul the ADA.
The EEOC also notes that employers may encourage employees and their family members to get vaccinated by providing them with information “to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.” However, the EEOC takes the position that employers may not offer incentives to employees for family members to get vaccinated, reasoning that such incentives could be in violation of the Genetic Information Nondiscrimination Act (GINA).
Lastly, the EEOC confirmed that while employers may request proof of vaccination where the vaccine is administered by a third party, a person’s vaccination status is confidential medical information. Employers that request proof of vaccination must keep their employees’ vaccination information private pursuant to the ADA (i.e., the information must be kept separate from an employee’s personnel file).
Employers mandating that their employees be vaccinated must continue to offer exceptions and reasonable accommodations for their employees who are precluded from receiving a vaccination for medical, religious, or pregnancy-related reasons. Employers who are collecting employee vaccination records should ensure that they are storing such information confidentially and by secured means, separate from the employee’s personnel file. Finally, employers directly providing the vaccine (or through an agent) should limit any incentive programs to avoid “coercive” incentives that may pressure an employee to disclose protected medical information, but if the vaccine is not being administered by the employer, then the employer may offer incentives to employees to voluntarily provide documentation or confirmation of COVID-19 vaccination generated by a third party.