EEOC Issues Updated COVID-19 Technical Assistance Guidance for Employers
The Equal Employment Opportunity Commission (EEOC) recently issued updated and expanded guidance concerning the COVID-19 pandemic (“Guidance”), addressing questions arising under the federal equal employment opportunity (EEO) laws concerning mandatory employer vaccination programs and accommodation requirements, along with vaccine incentives.
The Guidance specifically notes that it concerns applicable EEO standards only – and that other laws (outside of the EEOC’s jurisdiction) may place additional restrictions on employers. Thus, aside from federal law and the related Guidance, employers must continue to be mindful of guidance from the Occupational Safety and Health Administration and the Centers for Disease Control, as well as any additional state and local requirements when implementing COVID-19 vaccine and other policies.
Set forth below is a summary of some key points based on the EEOC’s latest information. Our discussion of previous EEOC COVID-19 related guidance can be found here.
1. Requiring the COVID-19 Vaccine
The Guidance states that the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (“Title VII”), and other federal employment non-discrimination laws do permit an employer to require all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII (as applied to accommodations for religion), the ADA (as applied to accommodations based on disability), and other applicable EEO considerations. The Guidance does not address vaccine requirements for remote workers.
The Guidance also advises employers that, as with any employment policy, mandating the vaccine may have a disparate impact on certain demographic groups. Accordingly, employers should be mindful that, because certain individuals or demographic groups may face greater barriers to receiving the COVID-19 vaccination than others do, some employees may be more likely to be negatively impacted by a vaccination requirement.
2. Vaccine Related Reasonable Accommodations
Under the Guidance, an employee who elects not to get vaccinated due to disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation, provided it does not pose an undue hardship on the employer’s business. Such accommodations may include, for example, an employee wearing a face mask at work, working at a social distance from other coworkers or non-employees, working a modified shift, getting periodic COVID-19 tests, teleworking, or accepting a reassignment.
Further, employees who elect not to get a COVID-19 vaccine because of pregnancy may similarly be entitled (under Title VII) to adjustments so that they may continue to come to the workplace, if their employers make modifications or exceptions for other employees (e.g., accommodation based on an employee’s disability or sincerely held religious belief). These modifications for pregnant workers may be the same as those provided to others (as discussed above).
The Guidance discusses in detail an employer’s obligation to engage in an interactive process with an employee who seeks exemption from a mandatory vaccine policy for covered reasons, as well as related employer requirements in terms of this process. The Guidance covers in some detail how an employer may evaluate whether a requested employee accommodation presents an “undue hardship” to the employer given the current pandemic, and specific factors for consideration in this environment in terms of risk-evaluation (e.g., proportion of employees in the workplace who are already vaccinated, extent of employee contact with non-employees who may not be able to obtain the vaccine, etc.).
3. Vaccine Incentives and Encouragement
The Guidance also addresses how employers may encourage employees and their family members to get vaccinated. In this regard, the Guidance states that employers may provide employees and family members with information to educate them about COVID-19 vaccines, raise awareness regarding the benefits of getting vaccinated, and address employee questions and concerns. In addition, the Guidance specifically identifies several resources available to employees seeking information about obtaining a COVID-19 vaccine.
The Guidance states that an employer is not making a “disability-related inquiry” by asking an employee to request confirmation that he or she obtained a COVID-19 vaccine from a third party in the community (such as a local pharmacy, personal healthcare provider, or public health clinic), because in those situations the employer is not asking an individual to disclose the existence of a disability. Accordingly, the ADA’s rules about disability related inquiries would not apply in these circumstances. Any documentation received is considered to be medical information about the employee and must be kept confidential. Although not discussed here, the Guidance also specifies employer obligations where an employer or its agent (rather than a third party) administers the vaccine under either a voluntary or mandatory employer vaccine program. (See Link 1 for further details).
In addition, the Guidance provides that an employer may offer an incentive to employees to provide confirmation that they received a vaccination on their own from a third party and, under this circumstance, does not provide any restrictions on such an incentive (e.g., value of incentive, type of incentive, etc.). However, the Guidance provides that where an employer or its agent, as opposed to a third party, administers the COVID-19 vaccine, any incentive given may not be “so substantial” as to be coercive.
The Guidance also discusses employer compliance with Title II of GINA (which prohibits covered employers from using genetic information of employees to make employment decisions) in terms of COVID-19 policies and considerations.
The members of the Gibbons Employment & Labor Law Group are available to assist you in considering and drafting COVID-19 vaccine and related policies and managing the many workplace issues and concerns related to the COVID-19 pandemic. For assistance or additional information, please contact an attorney in the Employment & Labor Law Group.