EEOC updates guidance regarding employer COVID-19 vaccination policies; still more to come

In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) published Technical Assistance Questions and Answers to help employers navigate and comply with their obligations under federal equal employment opportunity (EEO) laws as they implement COVID-19 health and safety measures based on evolving guidelines and recommendations from the Centers for Disease Control and Prevention (CDC).  The EEOC previously updated its guidance to address the applicability of federal EEO laws to employer vaccination programs and policies.  On May 28, 2021, the EEOC clarified and supplemented this guidance to address mandatory vaccination policies, vaccination incentive programs and confidentiality requirements.

Mandatory vaccination policies

The EEOC’s updated guidance states that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”  However, the guidance also makes clear that, under federal EEO laws (eg, the Americans with Disabilities Act and Title VII of the Civil Rights Act), if an employee indicates (or an employer knows or has reason to know) that they are unable to get vaccinated because of a disability or sincerely held religious belief, practice or observance, employers may be required to provide a reasonable accommodation to such an employee, unless providing an accommodation would impose an undue hardship (ie, a significant difficulty or expense).

Reasonable accommodation

The updated EEOC guidance includes the following examples of reasonable accommodations that an employer may offer an employee:

• wear a face mask,
• work socially distanced from coworkers or non-employees,
• work a modified shift,
• get periodic tests for COVID-19,
• be given the opportunity to telework, or
• accept a reassignment (although the EEOC implies that reassignment should only be considered if no other reasonable accommodations are available, absent an undue hardship).

In assessing whether an accommodation may pose an undue hardship, the EEOC states that employers: (i) should consider the proportion of employees in the workplace who are already partially or fully vaccinated against COVID-19 and the extent of an employee’s contact with non-employees (who may or may not be vaccinated); and (ii) may rely on CDC recommendations.

The EEOC’s guidance advises employers to consider all possible options before denying an employee’s request for a reasonable accommodation. In addition, if an employer ultimately determines that no reasonable accommodation is available, employers should determine whether any other rights under EEO or other federal, state or local laws apply before taking an adverse employment action against an unvaccinated employee.

Vaccine incentive programs

The EEOC’s most recent update clarifies that employers are permitted to encourage employees to voluntarily obtain the COVID-19 vaccination by: (i) providing employees and their family members with information to educate them about COVID-19 vaccines, including information and materials that raise awareness about the benefits of vaccination and that address common questions and concerns; and (ii) offering incentives to employees that provide proof of COVID-19 vaccination.

However, because vaccinations require employees to answer disability-related screening questions, if an employer is operating a vaccination program, such employer is prohibited from offering employees substantial incentives that may be considered coercive (as such incentives may result in the employee feeling pressured to disclose protected medical information).

The guidance also addresses vaccination incentives for family members. According to the EEOC, under the Genetic Information Nondiscrimination Act (GINA), an 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. However, an employer may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent if it takes steps to ensure GINA compliance.

These limitations do not apply if an employer, in designing an incentive program, offers an incentive to employees to voluntarily provide documentation or other confirmation that they or their family members received a COVID-19 vaccination on their own from a third-party provider not acting on the employer’s behalf (eg, pharmacy, doctor, health department). However, such an employer should also evaluate whether a proposed incentive would be taxable to employees.  

Confidentiality requirements

The EEOC’s previous guidance indicated that employers are permitted to require that employees provide proof that they are fully vaccinated, provided that such a request does not include subsequent employer questions (ie, inquiring as to why an employee has not been vaccinated) or otherwise elicit information about an employee’s health condition or disability. The EEOC’s recent update supplemented this guidance to clarify that an employee’s COVID-19 vaccination status and other information concerning an employee’s COVID-19 vaccination are considered “medical information” under the ADA, and therefore must be kept confidential and stored separately from the employee’s personnel files.

General antidiscrimination principles

The EEOC’s updated guidance reminds employers that COVID-19 vaccination requirements and incentive programs, like other employment policies, cannot treat employees differently or create a disparate impact on or disproportionally exclude employees 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 for doing so.  To that end, the EEOC notes that “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others,” and as a result, employers should consider whether such individuals and demographic groups may be disproportionately impacted by an employer’s COVID-19 vaccination policy or program.

Employers who choose to implement a COVID-19 vaccination policy or incentive program are urged to consider applying such policy or program uniformly to similarly-situated employees.  In addition, employers are encouraged to be mindful that if a reasonable accommodation or other exception is made for one employee, such a decision may potentially impact how the employer is obligated to respond to similar requests from other employees. 

Lastly, while many employers were hopeful that the EEOC’s guidance would address some of the thornier questions surrounding implementation of the CDC’s updated guidance for fully vaccinated individuals – which stated that fully vaccinated individuals no longer need to wear masks or socially distance in most settings – the EEOC notes that its “materials were prepared prior to the CDC’s updated guidance,” and that “[t]he EEOC is considering any impact of these developments on COVID-19 technical assistance provided to date.”

DLA Piper continues to monitor COVID-19 guidance in this rapidly changing area.  Please contact any member of the DLA Piper Employment group, or your DLA Piper relationship attorney for the most current information or email us at CoronavirusEmployment@dlapiper.com.

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