EEOC Issues Updated COVID-19 Vaccine Guidance

Although there is a great deal of information in the updated guidance, the EEOC made clear that it was prepared “prior to the [Center for Disease Control and Prevention]’s updated guidance for fully vaccinated individuals” released on May 13, 2021. Thus, further information from the EEOC on the CDC’s most recent guidance relating to fully vaccinated individuals is expected. Also, employers are encouraged to review the full text of the updated guidance, but key points include the following (some of which are new as of May 28, 2021, while others were in the guidance before May 28, 2021, and have been the topic of other client alerts Klehr Harrison has drafted):

Mandatory Vaccination Requirements

• Subject to specific limitations under the EEO Laws, employers may require employees to receive the COVID-19 vaccination before returning to the workplace.[1] This is the case regardless of whether an employee gets the vaccine in the community or from the employer.
• An employee with a disability covered by the American with Disabilities Act (ADA) or with a sincerely-held religious belief, practice or observance under Title VII of the Civil Rights Act (Title VII) may be entitled to a reasonable accommodation, provided the accommodation does not pose an undue hardship on the operation of the employer’s business. The EEOC provides the following examples of reasonable accommodations for unvaccinated individuals entering the workplace:
  • Permitting the employee to wear a face mask, to work at a social distance from co-workers, or to telework.
  • Requiring the employee to get periodic COVID-19 tests.
• Under Title VII, employees who are unvaccinated because of pregnancy may be entitled to adjustments to keep working, if the employer makes modifications or exceptions for other employees. Modifications may be the same as the accommodations made for employees based on a disability or a sincerely-held religious belief.
• Employers should keep in mind that, under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation. All reasonable accommodation requests should be processed in accordance with applicable ADA standards.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination and address common questions and concerns. The EEOC’s guidance provides a list of resources available to employees seeking more information regarding vaccinations.

Voluntary Vaccination Requirements

• Employers or their agents may offer voluntary vaccinations to employees, but the EEOC makes clear that employers must do so in a way that does not discriminate against employees based on a protected characteristic, including national origin.
• If the employer offers to vaccinate its employees on a voluntary (as opposed to required) basis, the employer does not have to show that any pre-vaccination screening questions are job-related and consistent with business necessity. Under the ADA, however, the employee’s decision to answer the questions also must be voluntary, and the employer may not take an adverse action against the employee or harass the employee for refusing to participate in a voluntary employer-administered vaccination program.

Employer Incentive Programs for Voluntary COVID-19 Vaccinations

• The EEOC distinguishes between voluntarily receiving vaccines “in the community” and voluntarily receiving vaccines administered by the employer or its agent. Subject to the following limitations, employers may provide incentives to employees for getting vaccinated and/or providing documentation to prove their vaccination status.
• Employers may, under certain circumstances, provide unlimited incentives to employees who voluntarily provide documentation or otherwise confirm that they received the vaccine from a third-party, such as a doctor, pharmacy or other health care provider in the community.
• If an employee receives the COVID-19 vaccine from the employer or its agent, the employer may still offer incentives to employees; however, such incentives cannot be “so substantial as to be coercive.”
• According to the EEOC, “a very large incentive could make employees feel pressured to disclose protected medical information.” That said, employers are left to guess somewhat about what would be a “very large incentive,” as the EEOC does not provide examples of incentives that are considered “coercive.”
• Employers may offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, provided the employer ensures Genetic Information Nondiscrimination Act of 2008 (GINA) compliance.
• Employers may not require that family members get vaccinated or penalize employees if their family members decide not to get vaccinated. Also, if employers receive confidential medical information from family members during the pre-vaccination screening process, such information must be kept confidential, and cannot be provided to managers, supervisors, or others who make employment decisions for employees. In accordance with GINA, employers must obtain prior, knowing, voluntary and written authorization from family members before they are asked any questions regarding their medical conditions.
• Under GINA, an employer may not provide an incentive in exchange for genetic information. Thus, an employer may not offer any incentives to an employee in exchange for a family member getting vaccinated by the employer or its agent because the vaccinator would be required to ask the family member pre-vaccination medical screening questions, which include medical questions about the family member. This would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.

Documentation Requirements

• An employer may ask employees whether they obtained the COVID-19 vaccine and request proof of the same because, in so doing, the employer is not asking for information that is “likely to disclose the existence of a disability,” under the ADA.
• That said, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee. Thus, in accordance with the ADA, vaccination documentation, like other medical information, must be kept confidential and stored separately from the employee’s personnel files.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Co-authors Lee Moylan, chair and Stephanie Wolbransky, associate are members of the labor and employment practice at Klehr Harrison.

[1] For a more detailed analysis, see EEOC Issues COVID-19 Vaccine Guidance, dated January 14, 2021.