Member Article

Key Points

• Employers have the right to mandate vaccines subject to religious and disability-related employee exemptions.

• Asking if an employee has been vaccinated is not a prohibited medical inquiry.

• Incentive programs to encourage vaccinations are permissible.

Introduction

Previously, the Equal Employment Opportunity Commission (EEOC) issued Guidance permitting employers to implement COVID-19 vaccine mandates, subject to certain exemptions. The new Guidance reiterates the medical/disability condition and sincerely held religious belief exemptions that the EEOC recognizes for other vaccines.

The EEOC issued Guidance regarding this on May 28 in updates to Section K of their Frequently Asked Questions (FAQ). The May 2021 Guidance does not change in substance from the original Guidance and also addresses new subjects, including incentives under the ADA in K.16 and under the GINA in K.18. As before, the EEOC does not take a position on the FDA's Emergency Use Authorizations (EUA) status.

Below are broad stroke highlights of the EEOC's FAQ responses that employers should review in more detail before proceeding with a mandatory or voluntary vaccination program. Hanson Bridgett's Labor & Employment Mid-Year Briefing Seminar will be addressing this topic as well on June 9, 2021, from 9 a.m. – 12 p.m. PDT by webinar. If you have not already registered, RSVP to save your spot.

The New EEOC Guidance from May 28, 2021

Medical Information; Disability-Related Questions and Accommodations

K.1. The EEOC reiterates that the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations such as disparate impact. For example, offering voluntary vaccination only to certain groups of employees would not be permissible under EEO laws. (FAQ, K. 10.) The EEOC also  reminds employers that accommodating a disability includes pregnancy related disabilities. (FAQ, K. 13.) 

K.2. The EEOC suggests the following as accommodations for employees not vaccinated due to valid exemptions: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."  

Obviously, whether these are reasonable, viable accommodations is  an individual assessment for each employer. However, given that the EEOC views these as standard accommodations, an employer is well served to document the reasons why the above could not be accommodated – for example – a bus driver and a care giver cannot telecommute.

K.4. The EEOC confirms that an employee’s COVID-19 vaccination is confidential medical information under the ADA. It also cautions that ADA restrictions on disability-related inquires apply to the screening questions  in any mandatory vaccine  program that an employer or employer's agent administers.  This means that the inquiry must be job related and consistent with business necessity:

The ADA’s restrictions apply to the screening questions that must be asked immediately 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. (FAQ, K.7.)

If the employer's program is voluntary, meaning that employees can choose whether or not to get the COVID-19 vaccine from the employer or its agent, "the  employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity.  However, the employee’s decision to answer the questions must be voluntary." (FAQ, K.8.)

K.5. Employers may require all employees entering the workplace to be vaccinated even though it knows that some employees may not get a vaccine because of a disability. In the case of an employee with a disability preventing them from getting vaccinated, the employer must demonstrate the employee would be a direct threat to themselves or others. The EEOC provides this as a two-step process: 

1. Does the non-vaccinated person pose a direct threat?
2. If so, is there a reasonable accommodation that would reduce or eliminate the threat?
   
   

As before, in considering accommodations, the EEOC notes an employer should consider the status of the overall vaccination rate:

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p). Employers are advised to consider all the options before denying an accommodation request. The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees who may be ineligible for vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. (FAQ, K.6.)

K.9. It is not a disability-related inquiry for an employer to ask employees whether they obtained a COVID-19 vaccine from a third party because the employer is not asking a question that is likely to disclose the existence of a disability. "However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential."

K.15. The EEOC confirms that an employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of the Genetic Information Nondiscrimination Act (GINA). Title II of the GINA prohibits genetic information discrimination in employment. Genetic information includes information about an individual's genetic tests, an individual's family members' genetic tests, and information about the manifestation of a disease or disorder in an individual's family members.

Incentives

K. 16. An employer may provide incentives to employees who can demonstrate that they received a COVID-19 vaccination from a third party because it is not a disability-related question. It may also provide an incentive to employees for voluntarily receiving a vaccination that the employer or its agent administers. However, for the employer program, the EEOC points out the incentive should not be "so substantial as to be coercive" as a very large incentive would put pressure on employees to disclose medical information. (FAQ, E. 17.) These employee incentives are legal under GINA as long as the employer does not acquire genetic information. (FAQ, E. 18. and 19.)

K. 20. Despite the go-ahead for employee incentives under GINA, the EEOC provides that an employer may not offer an incentive to an employee to have that employee's family member vaccinated.

Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee. The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information.

The Guidance does confirm that the employer may still offer an employee's family member the opportunity to be vaccinated. (FAQ, E. 21.)

Conclusion

This area continues to evolve based upon many factors, including the rate of COVID-19 cases, the rate of vaccinations, and the FDA's possible change from its Emergency Use Authorization (EUA) status.¹ Employers need to consult with their counsel before implementing any staff vaccination programs.

Join our Labor & Employment Mid-Year Briefing Seminar on Wednesday, June 9, to get your additional questions answered.

¹ The FDA continues to refine its vaccine authorizations. On May 10, 2021, it reissued its EUA letter to authorize emergency use of the Pfizer Vaccine for the prevention of COVID-19 for individuals 12 through 15 years of age. https://www.fda.gov/media/144412/download