On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance regarding workplace COVID-19 vaccination policies and employee accommodations (the “Updated Guidance”). Among other issues, the Updated Guidance clarifies some significant questions that employers have been facing regarding mandatory vaccination policies, vaccine incentive programs, and reasonable accommodations available for both vaccinated and unvaccinated employees.
Mandatory Vaccination Policies
So long as certain requirements are met (see more on accommodation requirements below), the Updated Guidance confirms that an employer may enact a mandatory vaccination policy for all of its employees physically entering the workplace without running afoul of any federal equal employment opportunity laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), or the Genetic Information Nondiscrimination Act (“GINA”).
That being said, the Updated Guidance cautions employers that enacting a mandatory vaccination policy may have a disparate impact on employees based on a protected characteristic like race, color, religion, sex, or national origin. For example, the EEOC 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.” Therefore, an employer requiring employee vaccination should periodically assess whether that policy disproportionately negatively impacts employees in protected categories.
Significantly, the Updated Guidance recognizes the potential that employers may violate other laws when enacting a mandatory vaccination policy. The EEOC explicitly notes that all available COVID-19 vaccines were granted Emergency Use Authorizations (“EUA”) by the Food and Drug Administration (“FDA”) and directs those “seeking more information about the legal implications of EUA or the FDA approach to vaccines” to visit the FDA’s EUA page. This reflects the EEOC’s implicit recognition that employees have filed cases challenging the legality of their employer’s mandatory vaccination policy based on the emergency nature of it. Specifically, legal challengers to the propriety of a mandatory vaccination policy object to such policies because the EUA explicitly provides that individuals must have, “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequences, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.” Additionally, employers adopting mandatory vaccination policies should be aware that employees who are terminated for refusing to receive a COVID-19 vaccine with EUA status could try to pursue claims for wrongful termination in violation of public policy.
Overall, the viability of these challenges to mandatory vaccination policies remains to be seen. While the general consensus is that private employers are permitted to enact mandatory policies, employers deciding to enact such policies should be aware of the potential risk for legal exposure associated with that decision. Further, employers should stay up-to-date with applicable state or local laws as there are numerous pieces of pending legislation across the country that, if passed, would prohibit employers from requiring employees to receive a COVID-19 vaccine.
Reasonable Accommodations Available to Mandatory Vaccines
As we previously reported, the EEOC noted in its initial guidance regarding mandatory workplace vaccination policies that employers who require employees to be vaccinated must provide reasonable accommodations for employees who cannot receive a COVID-19 vaccine due to disability, sincerely held religious beliefs, or pregnancy. The Updated Guidance provides various examples of available accommodations for such individuals. Namely, with respect to those who cannot get vaccinated due to disability or a religious belief, employers that have enacted mandatory vaccination policies may require such unvaccinated employees to: wear a face mask, socially distance from others, work a modified shift, periodically get tested for COVID-19, continue working from home, or accept a reassignment. Additionally, the Updated Guidance states that employees who are not vaccinated due to pregnancy, “may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as accommodations made for an employee based on disability or religion.”
Vaccine Incentive Programs
Based on current data, the vast majority of employers have decided not to enact mandatory vaccination policies at this time. Instead, many employers have decided to encourage their employees to receive a COVID-19 vaccine. As one component of a policy encouraging vaccination, some employers offer incentives to employees who get vaccinated, like the award of additional paid time off or payment of a one-time vaccination bonus. The Updated Guidance clarifies that such incentive programs are permissible, so long as certain requirements are met.
Incentives Available to Employees for Voluntarily Receiving an Employer-Provided Vaccine
Employers may offer incentives (which includes both rewards and penalties) to employees for voluntarily receiving a vaccination administered by the employer or its agent, so long as the incentive “is not so substantial as to be coercive.” The EEOC explains that because the employer or its agent must ask certain disability-related screening questions to administer a COVID-19 vaccine, “a very large incentive could make employees feel pressured to disclose protected medical information.” It is unclear under the Updated Guidance what would qualify as an incentive that is too “substantial as to be coercive,” so employers who administer COVID-19 vaccines to employees or contract with a third-party for vaccine administration should speak with counsel regarding any incentives offered to employees.
Incentives Available to Employees for Voluntarily Showing Proof of Vaccination by a Third-Party
According to the Updated Guidance, the above “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.” Therefore, employers that do not administer the vaccine themselves, or contract with an agent to vaccinate employees, may provide larger incentives to employees because they are not receiving any disability-related information from their employees. Indeed, the EEOC’s Updated Guidance affirms that requesting proof of vaccination is not a disability-related inquiry covered by the ADA and does not run afoul of GINA because the fact that an employee received a vaccination is not protected genetic information.
Vaccine Incentives for Family Members
The Updated Guidance provides that employers may also offer incentives to employees to voluntarily provide documentation or other confirmation that their family members received a vaccination from a third-party not acting on the employer’s behalf. The EEOC notes that asking an employee to show proof of vaccination that the employee’s family member has been vaccinated by a third-party not acting on the employer’s behalf is not an unlawful request for genetic information under GINA.
However, the Updated Guidance clearly states that employers may not offer any incentive to employees in return for an employee’s family member getting vaccinated by the employer or its agent. Because the employer or its agent would have to ask the employee’s family member the pre-vaccination medical screening questions, the employer would then, in turn, be in receipt of family medical history of the employee (which is protected by GINA). Employers are prohibited from providing incentives in exchange for genetic information under GINA.
The Updated Guidance states that employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, so long as certain steps are taken to ensure GINA compliance.
Additionally, employers can also encourage vaccination through education. The Updated Guidance provides links to federal resources that employers may use in educating their workforce and answering common questions about COVID-19 vaccination.
Accommodations for Vaccinated Employees
As more and more of the workforce is getting vaccinated, employers have already started receiving accommodation requests from employees who are vaccinated, but have an underlying disability that places these employees at a heightened risk of severe illness from a COVID-19 infection. Despite the employee being vaccinated, the Updated Guidance states that the request should be processed like any other accommodation request in accordance with applicable ADA standards. Namely, regardless of vaccination status, and as noted above with respect to mandatory vaccination programs, to determine the propriety of any reasonable accommodation, the employer must engage in the interactive process with the employee, which typically includes “seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed.”
Employers should review the Updated Guidance in full and speak with counsel to assess whether any changes need to be made to workplace policies or procedures relating to vaccination policies, vaccine incentives, or employee accommodations.