EEOC Releases Guidance to Employers Regarding the COVID-19 Vaccine
On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) released updated its COVID-19 Technical Assistance guidance, addressing many frequently asked questions from employers relating to the COVID-19 vaccine in the workplace and implications under federal employment nondiscrimination laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”).FN1
The updated guidance provides the following:
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.
Reasonable accommodations for employees who do not get vaccinated due to a disability or a sincerely held religious belief, practice, or observance, include wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework, or accepting a reassignment.
The EEOC cautions employers to monitor a vaccination requirement’s impact to ensure that it does not disproportionally affect or exclude employees based on their race, color, religion, sex, or national origin.
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.
Employers may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.
Employers may offer incentives (including both rewards and penalties) to employees who voluntarily receive COVID-19 vaccines administered by the employer or its agent, as long as the incentive is not so substantial as to be coercive.
Employers may also offer incentives to an employee’s family member to receive the vaccine without offering the employee an incentive, so long as the employer keeps all vaccination information confidential and does not provide it to managers, supervisors, or others who make employment decisions for the employees. Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.
Employers may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent, because doing so would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.
The ADA requires an employer to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.
The guidance clarifies that current COVID-19 screening questions do not implicate GINA as they do not inquire about genetic information.
Takeaway
Employers should look to the EEOC’s guidance when implementing policies regarding employee vaccinations. However, employers must still comply with state and local laws that may conflict or be more restrictive than federal laws. Given the complex nature of COVID-19’s impact on the workplace, please contact the attorneys at Campbell Litigation for assistance.
FN1 – See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Section K, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=