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Employment Law Notebook

EEOC Updates Guidance on Employer Policies Regarding COVID-19 Vaccines and Other Accommodation Issues

On May 28, the Equal Employment Opportunity Commission (“EEOC”) updated its previously issued guidance addressing COVID-19 vaccines. The new guidance provides more details on vaccine incentives, how to property handle employee accommodation requests and other issues.  It is a must-read for employers, particularly those who are returning or increasing the number of employees at the worksite.

Here we summarize key points addressed in the guidance.

Can an employer require an employee to get a COVID 19 vaccine?

The EEOC’s answer is still yes as long as employers comply with reasonable accommodation requirements and consider other EEO considerations.

Can employers offer incentives to employees to get a vaccine administered by the employer or its agent?

If the employer or its agent is providing the vaccine, the employer will be in possession of medical information about the employee because individuals getting a vaccine must first answer medical screening questions employees before getting one. These employers can provide such incentives as long as the incentive is not so substantial as to be coercive. The EEOC’s rationale is that providing too large an incentive could be perceived by an employee as pressure to disclose protected medical information to the employer.

Can employers offer incentives for employees to get a vaccine that is administered by a third party not associated with the employer (such as a pharmacy, vaccination center, etc.,) and to provide the employer with proof of vaccination?

Yes. Employers can provide such incentives without restrictions as to value because the employer is not making a medical inquiry by requesting such documentation but is only asking for proof of vaccination status.  Regardless, such records of vaccination status should be stored in separate, confidential, medical files.

Can employers offer an incentive for employees to provide the employer with proof that their family members received a vaccine from a third party not associated with the employer?

Yes. 

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees about family member’s diseases, disorders, other medical information and genetic information.  Since a family member’s vaccination status is not medical or genetic information, employers can provide such incentives without restrictions as to value without violating GINA.

Can employers offer incentives to an employee in exchange for the employee’s family member getting vaccinated by the employer or the employer’s agent?

No.  GINA prohibits employers from providing employees with incentives in exchange for genetic information, which would be disclosed when a family member answers medical screening questions before getting a vaccine.

EEOC’s new Guidance provides more information regarding reasonable accommodation requests from employees who tell their employers they cannot get the vaccine either due to disability or for religious reasons.

In my December blog, I discussed the requirement that employers must provide reasonable accommodations to employees who can’t get the vaccine due to disability, pregnancy or a sincerely held religious belief. on vaccination issues. The EEOC’s new Guidance recommends that employers include information in any vaccine policy telling employees how to request an accommodation and train managers and supervisors how to recognize accommodation requests from employees.

If an employee declines to get vaccinated due to medical reasons or pregnancy, under the Americans with Disabilities Act (“ADA”) and Pregnancy Discrimination Act, the employer can ask the employee to verify that reason by requiring the employee to provide it with a certification from a doctor that says that they have a condition, and that the individual should not get the vaccine.  The employer cannot require such disabled or pregnant employees to get the vaccine as a condition of employment unless it can demonstrate that the unvaccinated employee would pose a direct threat to the health or safety of employees and others in the workplace.

EEOC’s updated Guidance explains what employers must assess to determine if a direct threat exists and whether an accommodation would reduce or eliminate the threat.  A “direct threat” is “a significant risk of substantial harm” that cannot be eliminated or reduced by providing the employee with a reasonable accommodation. To assess if a direct threat exists,  employers must assess the employee’s ability to do the job safely relying on reasonable medical judgment that takes into account the most current medical knowledge about COVID-19, and also consider where the employee does the work and who interacts with the employee, ventilation in the workplace, the number of vaccinated employees in the workplace, whether other employees are wearing masks or undergoing routine screening; and the space available for social distancing.   Such medical knowledge about COVID-19 could include the level of community transmission of COVID-19 and come from the Centers for Disease Control and the employee’s physician (with the employee’s consent).

If the employer ‘s assessment determines that an unvaccinated employee poses a direct threat to others, The ADA requires employers to have an interactive dialogue with the employer to assess if there is a reasonable accommodation (some kind of adjustment at work) that the employer can provide that will enable the unvaccinated employee to keep working, will reduce the risk of harm, and will not impose an undue burden on the employer.  Some examples could include permitting the employee to work off hours at the work site or in a part of the workspace that is further away from other employees, allowing an employee to work from home, requiring this employee and other unvaccinated employees to wear masks in a workplace where vaccinated employees do not need to wear masks, building additional partitions around the area where an employee works, increasing ventilation in the worksite, or as a last resort, reassignment to another position or providing the employee with leave.  Such accommodations do not need to be provided if doing so will cause significant difficulty or expense (creates an undue burden). EEOC’s updated Guidance states that the amount of employees already fully or partially vaccinated against COVID-19 in the workplace, the unvaccinated employee’s exposure to non-employees who are also unvaccinated or whose vaccination status is unknown, and CDC recommendations can be considered when evaluating if an accommodation would pose an undue hardship.

What must an employer do if an employee who is fully vaccinated still has concerns about facing heightened risk of severe illness from COVID-19 and wants an accommodation (such as remote work)?

EEOC Guidance states unequivocally that employers must engage in the interactive, reasonable accommodation process with such employees to assess if there is a disability-related need for the accommodation and provide one absent undue hardship.  This could come up with employees who are immunocompromised, have asthma or have other medical issues that put them at greater risk of severe illness from COVID-19.

Is there any update to EEOC Guidance with respect to employees who say they can’t get the vaccine for religious reasons?

As is the case for medical-based accommodation requests, EEOC’s updated Guidance, states that employers can consider the amount of vaccinated employees in the workplace, and the extent of the unvaccinated employee’s contact with others outside of the workplace who may be unvaccinated or whose vaccination status is unknown when determining if accommodating employees based on religious reasons creates an undue burden.

May an employer offer voluntary vaccinations only to certain groups of employees?

Employers can do so as long as they don’t offer the vaccine to employees in one protected class versus another.