EEOC Updates Employer Guidance on
COVID-19 Vaccinations
In the May 28, 2021 update to its “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, the U.S. Equal Employment Opportunity Commission supplemented its existing guidance relating to vaccinations. The EEOC, specifically approves, with certain important caveats, employer incentives to encourage employee vaccination and employer enquiries about employees' vaccination
status. Additionally, the Commision has provided further clarification regarding mandatory vaccine policies, disability exceptions, and guidance regarding equitable treatment of pregnant employees who request exemption from any work place mandatory vaccination policies.
The complete EEOC COVID-19 FAQ is at the following link: Frequently Asked Questions. The vaccination-related updates are all designated “(05/28/21)”.
Below are brief summaries of selected vaccination-related updates, but these are not a substitute for review of the complete updated EEOC guidance:
Under the ADA, Title VII and other federal nondiscrimination laws, an employer may require all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodations provisions of Title VII and the Americans with Disabilities Act (ADA) and other EEOC considerations reviewed in the EEOC guidance. Please also note: An employee with a disability who
does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, i.e., a reasonable accommodation. The employee does not need to mention the ADA or use the term “reasonable accommodation.” Managers and supervisors need to know how to recognize an accommodation request from an employee with a disability.
What if the employer requires a COVID-19 vaccination for all employees entering the workplace even though it knows some employees may not get the vaccine because of a disability? Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring the COVID-19 vaccination, if the standard is
job-related and consistent with business necessity. If the employee cannot meet the safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. The
EEOC guidance reviews how to determine whether a direct threat exists and, if it does, whether a reasonable accommodation would reduce or eliminate the threat.
Title II of the Genetic Information Non-Discrimination Act (GINA) is not implicated if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent, unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history. To date, the pre-vaccination
screening questions from the Food & Drug Administration do not seek any type of genetic information.
Information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. The ADA confidentiality requirement applies regardless of where the employee gets the vaccination.
Employers may use incentives to encourage employees to get vaccinated through third-party agents, such as a pharmacy, public health provider or other health care provider in the community. “Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA. Therefore, an employer may
offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.”
An employer may offer incentives to employees for voluntarily receiving a vaccination administered by the employer or its agent, but the incentive may not be coercive. The incentive, including both rewards and penalties, may not be 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. However, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.” (emphasis added)
Employers may offer an incentive to employees to provide documentation or other confirmation that they or other family members received a vaccination from their own health care provider or other health care provider, but, under GINA, the employer may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent. “Providing
such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history.”
Be mindful of the possibility that a vaccine requirement will have a disparate impact. “As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under
the Age Discrimination in Employment Act (40+)). Employers 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. It would also be unlawful to apply a vaccination requirement to employees 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.” (emphasis added)
If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment under Title VII.”
Author: John J. Janssen
