If there is anything we have learned from the COVID-19 pandemic, it is that the more things stay the same, the more they change. That’s right. Most of us have adopted a “wait and see” attitude when it comes to questions like masks on or off, mandating vaccines or strongly suggesting, and how much information can we actually seek from employees. After all, we haven’t always seen consistent guidance coming from state and federal agencies like CDC, EEOC and OSHA or state and local public health authorities. So we cautiously await new information before making any significant policy changes, especially when workplace and community safety are implicated.
On May 28 the EEOC published a set of 21 updated FAQ’s on vaccines as part of its Technical Assistance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. As always, it is important to remember that guidance is not law and to be mindful of what your state has said on the topic. In addition, there is always the potential for the COVID-19 numbers to change in your local area, and what is permissible may not be what is best. For now, however, and based on the positive numbers trend in New England, this updated EEOC guidance should be helpful to businesses. Each FAQ is dated for ease of reference. Although it is important to read the technical assistance and FAQ’s and to consider individual circumstances and guidance from other agencies, the following are some important takeaways:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.
This is about as clear a statement as the EEOC has made on this topic. There is nothing in the laws administered by the EEOC, the federal anti-discrimination laws, which proscribes mandating the vaccine as long as the employer complies with the reasonable accommodation provisions of Title VII (religion) and the ADA (medical issues). This necessitates engaging in an interactive dialog with any employee who seeks an accommodation.
Businesses should also be mindful of potential disparate impact on certain groups of employees which may face greater barriers to vaccination.
Employees who do not get vaccinated due to a disability or a sincerely held religious belief may be entitled to a reasonable accommodation which does not pose an undue hardship to the employer’s business.
Examples of reasonable accommodation include requiring unvaccinated employees to wear masks while at work or socially distance from other employees and the public, allowing telework, mandating periodic COVID-19 testing, or changing an employee’s shift or job location.
The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation of COVID-19 vaccination.
Vaccination documentation is medical information and needs to be safeguarded in the same manner as any private employee information. Businesses may require employees to show proof of vaccination, but documentation must be stored securely like any other medical information, preferably in the employee’s separate confidential medical file.
Businesses must be cautious about screening questions asked of employees when the vaccine is administered by the employer or its agent.
The ADA’s restrictions apply to the screening questions routinely asked prior to administering the vaccine if the vaccine is administered by the employer or its agent. An employer’s agent is an individual or entity having the authority to act on behalf of, or at the direction of, the employer such as an industrial health nurse. A vaccination is not considered a medical test, but screening questions are likely to elicit information about disabilities or family medical history and are thus problematic under the ADA and/or GINA.
Further, if the employer offers to vaccinate employees voluntarily, meaning the employee can choose to be vaccinated by the employer or its agent or in the community at a location of the employee’s choice, the employee may voluntarily choose to answer the screening questions. The employer is prohibited from taking any adverse action against the employee for choosing to be vaccinated elsewhere.
Employers may offer incentives to employees for voluntarily receiving vaccinations as long as the incentives are 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 so employers should be cautious about offering anything more than nominal financial or other incentives. However, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation 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.
As with all such guidance, it is important to check back frequently to confirm that no contrary guidance has been issued and to work with legal counsel in the event thorny accommodation or discrimination issues arise.