On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 Technical Assistance Questions and Answers (“Q&A”) page to add significant additional information regarding the range of options available to employers to encourage and even mandate COVID-19 vaccinations. Although the long-awaited guidance has come as approximately half of the total U.S. population has received at least one dose of a COVID-19 vaccine, employers who are still considering implementing mandatory vaccination policies or offering incentives for receiving the vaccine have been given the “green light” to do so.
Incentives for COVID-19 Vaccination
First, the guidance has confirmed that employers “may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community,” as long as the vaccination information is kept confidential.
For vaccination programs administered directly by an employer or its agent, however, the employer may only offer an incentive to receive the vaccine as long as the incentive (whether a reward or a penalty) “is not so substantial as to be coercive,” noting that “[b]ecause 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.” The guidance, however, does not contain any further details regarding what types of incentives might be “substantial” and prior EEOC guidance on employer wellness programs also failed to clearly define what may be substantial or coercive. As stated above, employers who do not provide the vaccine themselves or through an agent (and instead request that employees voluntarily provide documentation or other confirmation of vaccine receipt) are not subject to this incentive “size” limitation.
The guidance also addresses incentives to encourage employees’ family members to receive the vaccine. As with employees, the guidance generally provides that employers may offer incentives to employees who voluntarily provide proof of a family member’s vaccination from a community provider, but warns that employers may not offer incentives in exchange for an employee’s family member being vaccinated directly by the employer or its agent because pre-vaccination medical screening questions would lead to the employer’s receipt of genetic information (in the form of family medical history of the employee). An employer who wishes to directly provide vaccinations to employees’ family members may do so without offering an incentive, provided the employer complies with the requirements of the Genetic Information Nondiscrimination Act (“GINA”). In this regard, the guidance specifically states that “[e]mployers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.”
Mandatory Vaccination Programs
The updated Q&A also confirms that the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, regardless of whether the employee receives the vaccine in the community or from the employer. However, as explained in previous guidance, any mandatory vaccination program must comply with the reasonable accommodation provisions in Title VII and the ADA; specifically, accommodations for disability (including pregnancy-related disability) and sincerely held religious beliefs. The updated guidance provides additional details on potential reasonable accommodations, as described below.
The guidance also cautions against enacting a vaccination policy that has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, age, or national origin. Indeed, the updated guidance specifically notes that “[e]mployers should 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.” Similarly, the EEOC warns that vaccine requirements may not be applied “in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”
Practically, the EEOC’s caution about disproportional impact is hard to reconcile with its affirmative blessing of mandatory vaccination programs (with appropriate accommodation “outs”). In this regard, the EEOC already has meaningful data regarding which demographic groups may be more or less likely to be vaccinated. Accordingly, placing a burden—which may be a caution on paper only—on employers to avoid disparate impact is impractical at best.
Turning to the ADA, the updated guidance explains that an employer’s “direct threat” analysis (for purposes of determining whether an unvaccinated individual with a disability can be excluded from the workplace) should include consideration of the employee’s work environment, listing the following factors:
- 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 testing; and
- The space available for social distancing.
The updated guidance further addresses potential reasonable accommodations for an unvaccinated worker with a disability, including:
- Wearing a face mask;
- Working at a social distance from coworkers or non-employees;
- Working a modified or staggered shift;
- Making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees);
- Getting periodic tests for COVID-19;
- The opportunity to telework if feasible; or
- Accepting a reassignment, such as reassigning the employee to a vacant position in a different workspace.
The guidance notes that similar adjustments may be required for employees who are not vaccinated because of pregnancy, and cautions employers to ensure that pregnant employees are not discriminated against compared to other employees. “This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.”
The guidance is also clear that “the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible.” And although employers are not required to offer a reasonable accommodation that would impose undue hardship, the updated guidance advises employers “to consider all the options before denying an accommodation request,” reasoning that “[t]he proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.”
Notably, the guidance also suggests that even fully-vaccinated employees may be entitled to reasonable accommodations, directing employers to engage in the interactive process and reasoning that “some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.”
With respect to accommodating sincerely held religious beliefs, the guidance provides that “[o]nce an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.” As an example, the guidance predicts that individuals may request a religious accommodation to “wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee” and notes that “[s]uch requests should be processed according to the same standards that apply to other accommodation requests.”
In the religious accommodation context, however, the “undue hardship” analysis is “an easier standard for employers to meet than the ADA’s undue hardship standard[.]” The updated guidance states that “[c]onsiderations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.” The guidance cautions that “[u]ltimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.”
Employers should keep in mind that all information regarding an employee’s vaccination status is confidential under the ADA, and the updated guidance confirms that “documentation or other confirmation of vaccination … like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.”
Finally, although the updated guidance was published on May 28, it was prepared prior to the CDC’s May 13, 2021 guidance for fully vaccinated individuals. Accordingly, the EEOC has indicated that it “is considering any impact of these developments on COVID-19 technical assistance provided to date.” We expect that the EEOC will continue to update its guidance as the vaccination situation evolves, but the timing of any update is unpredictable.
Based on the above, employers should consider the following.
- Reasonable incentives are now expressly permitted and may be considered based on employer need.
- Remote work will continue to be an issue for employers. The updated guidance clearly distinguishes between employees who are physically present in the workplace and those who are not. Thus, teleworking will continue to be a consideration, including a potentially necessary consideration with respect to any accommodation request.
- Due to uneven rates of administration of the COVID-19 vaccine across the US and in the community, employers should apply any vaccination policy in a way that treats employees evenly.
- The updated guidance gives employers a better roadmap to enacting vaccination policies in the workplace, but planning, training, and clear policies and procedures are essential.
If you have questions about the updated guidance or wish to discuss other employment-related issues, please contact a member of AGG’s Employment team.