On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) released updated and expanded guidance on the COVID-19 pandemic’s interactions with federal equal employment opportunity (EEO) laws. The majority of the new guidance is directed at inquiries regarding vaccination status, vaccine incentives, and accommodations. If you are interested, you may read the revised guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.
This article highlights a few of the more interesting developments in the new guidance. According to new guidance, federal law does not prevent employers from requiring “all employees physically entering the workplace to be vaccinated for COVID-19 subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.”
To that end, the EEOC said that while employers can mandate COVID-19 vaccinations, they must still comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 and other equal employment opportunity laws. Furthermore, other laws not in the agency’s jurisdiction may place additional restrictions on employers.
That means if an employer is mandating “all employees physically entering the workplace get the COVID-19 vaccine”, and an employee requests a reasonable accommodation, an employer may need to enter into the interactive process with that employee and possibly provide a reasonable accommodation. Helpfully, the EEOC provided examples of some reasonable accommodations for employees who cannot become vaccinated, which include wearing a facial covering, social distancing, periodic COVID-19 testing, teleworking, and reassignment.
Further, the guidance clarifies that employers may ask employees to disclose their vaccination status and to provide proof of vaccination status. However, the EEOC considers an employee’s vaccination status confidential medical information under the ADA. So, if employers choose to obtain vaccination information from their employees, they must keep this information confidential under the ADA, meaning it must be kept confidential and documentation must be stored in separate medical files.
Finally, the guidance states that employers may also offer “incentives” to employees for voluntarily receiving a vaccination, as long as the “incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”
As you can likely see, even though employers now have new guidance around mandating the COVID-19 vaccine, things are certainly not completely clear. For instance, the EEOC reminds employers that it is important to keep in “mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
The guidance also serves as a reminder to employers that it is unlawful to apply a vaccination requirement in a way that treats employees differently based on disabilities, race, religion, or other such factors, unless there is a legitimate, nondiscriminatory reason for doing so.
Experts have said that while the EEOC and the Occupational Safety and Health Administration have said that employers can mandate that workers receive the COVID-19 vaccine, it may not be the best approach. This is a very complicated topic and many people have very strong feelings about the vaccine. Although the EEOC clarified that employers can provide employees and family members with information to educate them about COVID-19 vaccines and raise awareness about their benefits, it is best to carefully think through the implications of mandating a vaccine in your workplace.