EEOC Updates Guidance Regarding COVID-19 Vaccinations

Since the COVID-19 vaccines became easily available to the public, employers have inquired about the legality of mandatory and voluntary vaccination policies and vaccination incentive programs to encourage employees to vaccinate. On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) released long-awaited guidance for employers explaining how Equal Opportunity Laws (“EEO”) such as the Americans with Disabilities Act (“ADA”), the Genetic Information Anti-Discrimination Act (GINA) and Title VII of the Civil Rights Act as amended, among other things, by the Pregnancy Discrimination Act (“Title VII”) apply to vaccination guidelines, vaccination incentive programs and confidential employee documentation relating to such guidelines and programs (the “Updated Guidelines”). You can find the updated instructions Here, under Section K, the Vaccination Section, the EEOC What You Should Know About COVID-19 website and the ADA, Rehabilitation Act, and other EEO laws.1 The main updates are as follows.

Anti-Discrimination and Adequate Housing Principles

  • Mandatory vaccination guidelines for employees who physically enter the workplace – Employers can request that all of their employees who physically enter the workplace are vaccinated against COVID-19. If employers have a mandatory COVID-19 vaccination policy, they must also adhere to ADA’s “reasonable accommodation” provisions, Title VII, and other EEO considerations for those workers who are unable to receive the vaccine because of a disability or serious illness – religious belief held. It is important, however, that the updated guidelines do not address the mandatory COVID-19 vaccination guidelines for teleworkers.

  • Different effects / treatment issues with mandatory COVID-19 vaccination guidelines – Employers should keep in mind that some workers are more likely to be affected by compulsory vaccination as some people or demographics may face greater barriers to getting COVID-19 vaccination than others. Because of these different effects, employers may need to respond to allegations that a face-neutral, non-discriminatory COVID-19 vaccination requirement has different effects on a protected group such as minorities. It would also be unlawful for employers to apply a mandatory COVID-19 vaccination policy to workers who, based on disability, race, skin color, religion, gender (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, get it unless there is a legitimate, non-discriminatory reason.

  • Pregnant workers and mandatory vaccination – According to Title VII, an employer must ensure that pregnant workers are not discriminated against compared to other workers with similar work ability or incapacity. Therefore, a pregnant worker may be entitled to a job change, including teleworking, changes to work schedules or assignments, and vacation, provided such changes are intended for other workers.

  • Telework / redistribution as a sensible accommodation option – Workers who are unable to receive the vaccine due to a disability and / or serious religious reasons must be provided with reasonable accommodation so that the worker can be physically present in their current job without posing a direct threat . As part of reasonable accommodation, the employer must consider whether teleworking is an option for the job in question and whether a transfer to another job is an option as a last resort.

Incentive programs

  • Incentive programs for COVID-19 vaccinations – Employers can offer employees bonuses and other incentives to encourage them to voluntarily get vaccinated against COVID-19 by a third party who is not acting on behalf of the employer. Federal EBO laws do not prevent or restrict employers from offering such incentives.

  • Employers who administer vaccines, incentives must not be mandatory Employers or their local agents who administer vaccines to their employees can provide incentives for employees to get vaccinated as long as the incentives are not compulsory. Unfortunately, the updated guidance does not provide details of what incentives coercive measures could have. Since vaccination tests can include questions that require employees to answer screening questions related to disability, a very big incentive could encourage employees to share proprietary medical information with their employer and this would not be allowed.

Employer’s rights to information and confidentiality

  • Applications for vaccination cards (and other documents) – Employers can request that employees provide confirmation of their COVID-19 vaccination status (e.g. vaccination certificate or pharmacy documents).

  • Confidentiality of employee vaccination cards (and other documents) – If employers choose to receive vaccination information such as vaccination cards or other vaccination documents from their employees, this information must be treated confidentially in accordance with ADA and kept separate from the employee’s personnel files.

  • Educational information – Employers can provide information to employees and their family members to educate them about COVID-19 vaccines and raise awareness of the benefits of COVID-19 vaccination. The updated guidelines also highlight the federal government’s resources available to those seeking more information about COVID-19 vaccination.

Practical considerations for employers

Employers will likely continue to struggle with whether or not they should have a mandatory or voluntary COVID-19 vaccine policy and whether they should incentivize their employees to get the COVID-19 vaccine. To support employers’ decision-making processes, given the updated guidance from the EEOC, employers should consider the following:

  1. If employers have a mandatory vaccination policy, they should ensure that their policy provides reasonable accommodation in accordance with EBO laws.

  2. As a best practice, you should inform staff about the option and procedure for applying for housing if vaccinations are required;

  3. Check beforehand EEOC guide to determine how to accommodate employees with disabilities or religious objections to the vaccine;

  4. If employers have a mandatory vaccination policy, they need to ensure that it does not have different effects on individuals based on disability, race, color, religion, gender (including pregnancy, sexual orientation and gender identity), national origin, age or genetic origin information;

  5. When employers vaccinate themselves, they need to ensure that any incentives to vaccinate are not compulsory;

  6. Employers must keep vaccination cards and other employee records as part of their confidential medical record;

  7. Teleworking should be considered for workers with disabilities who cannot receive the vaccine under the “reasonable accommodation” procedure; and

  8. Employers should monitor vaccination policies in the workplace to ensure that minorities as well as other protected groups are not exposed to barriers to employment as part of a mandatory vaccination program.

1 May 2021, the US Department of Health, Centers for Disease Control and Prevention (CDC) released updated guidelines for fully vaccinated individuals exempting them from masking requirements “except when provided by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidelines. ”The EEOC is considering the impact of this CDC guidance on the EEOC’s previous technical assistance on COVID-19. It is therefore unclear how much weight the EEOC has given the updated guidance that is the subject of this legal update.

© 2021 by Briesen & Roper, scNational Law Review, Volume XI, Number 152

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