Just in time for the Memorial Day holiday, the federal Equal Employment Opportunity Commission (EEOC) issued some much-needed guidance for employers on COVID-19-related topics. The EEOC’s guidance comes in response to the federal Centers for Disease Control (CDC)’s May 13th updated guidance for vaccinating individuals. The EEOC’s May 28th guidance adds to the ever-expanding list of online technical assistance “FAQs,” and focuses primarily on questions about mandating, documenting and incentivizing the COVID-19 vaccine. Here’s what you need to know:
The EEOC has finally confirmed what many have long-suspected regarding an employer’s ability to mandate COVID-19 vaccines for its employees. The EEOC has stated that employers may lawfully require employees who physically enter the workplace to get the COVID-19 vaccine “subject to reasonable accommodation provisions of federal nondiscrimination laws.” This means that employers must consider employees’ reasons for declining the vaccine on a case-by-basis and account for lawful exemptions. For example, an employee who declines vaccination due to a disability (as defined by the Americans with Disabilities Act (ADA)) or a sincerely held religious belief, practice, or observance may be entitled to a reasonable accommodation in lieu of receiving the vaccine. The guidance also identifies pregnant employees as those who may lawfully seek an exemption from a mandatory vaccination policy. A pregnant employee, for example, may be entitled to temporary 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 EEOC guidance provides several specific examples of potential accommodations for those who are unvaccinated due to an ADA-covered disability, pregnancy or sincerely held religious belief. The potential accommodations for people who are unvaccinated under a lawful exemption include: requiring an unvaccinated employee to wear a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, be given the opportunity to telework, or accepting a reassignment.
Many readers breathed a collective sigh of relief when the EEOC officially stated on May 28th that requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination is not a disability-related inquiry covered by the ADA. Nor does requiring documentation violate the Genetic Information Nondiscrimination Act (GINA). Nevertheless, should an employer request this information, it ought to be kept confidential and in a file separate from the personnel file, as it still contains medical information.
The EEOC confirmed that employers may lawfully offer incentives to employees for voluntarily receiving the vaccine. Interestingly, the EEOC seems to have drawn a distinction between employers who offer incentives to employees who voluntarily receive the vaccine outside of work versus those that choose to receive the vaccine administered by the employer or its agent. The EEOC appears to place no limit on an incentivization program for employees who receive the vaccine outside of work. See the FAQ below:
Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community?
Yes. 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. As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.
However, if the employer (or its agent) is offering the vaccine on their own or from a third-party provider, then the EEOC guidance states that any incentive for voluntarily getting vaccinated must be “not so substantial as to be coercive.” Without specifically defining “substantial,” the guidance states that “a very large incentive” could make an employee feel pressured into disclosing protected medical information. Unfortunately, the guidance does not further elaborate on the definition of “substantial” (or even “very large incentive”).
Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?
Yes, if any incentive (which includes both rewards and penalties) is 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. As explained in [above], 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.
The EEOC has noted that it will continue to issue guidance in connection with the CDC’s on-going updates. The EEOC is also continuing to update its outreach to individuals who are being harassed, are “high-risk” and need extra protection from getting sick, are not being allowed to work, or need a modification of COVID-19 safety requirements.
The employment law team at Skelton Taintor & Abbott is working every day to stay on top of these issues. Please do not hesitate to reach out.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.