By Katherine L. Wood, Esq.
With the COVID-19 vaccine now widely available, employers continue to ask questions about what they can do to ensure or encourage vaccination for all of their employees. New guidance released by the Equal Employment Opportunity Commission (“EEOC”) on October 13, 2021, discusses vaccine mandates and employer incentives for vaccination. The new guidance also discusses employer requests for vaccine confirmation and confidentiality of employees’ vaccine information.
The guidance aims to assist employers in complying with the Americans with Disabilities Act (“ADA”), Title VII, and Genetic Information Non-Discrimination Act (“GINA”) in the COVID-19 context. Employers should continue to consider the EEOC’s developing guidance when developing vaccine-related policies.
It is not against federal anti-discrimination laws to mandate vaccines for employees who physically enter the workplace.
Perhaps most importantly, the new guidance clarifies that it is not against federal anti-discrimination laws for employer to require vaccinations for all employees entering the workplace. However, there are circumstances where employers need to offer reasonable accommodations for employees who cannot get vaccinated due to disability or sincerely held religious beliefs.
The guidance also reminds employers to keep in mind that some demographic groups may face barriers to receiving a vaccination. This could lead to a policy that has a disproportionate negative impact on employees based on their race, color, religion, or other protected classifications. Employers who are enacting mandatory vaccination policies should keep an eye out to ensure no disparate treatment of such groups.
If an employee seeks an exemption from a vaccination requirement due to pregnancy, employers must ensure that the pregnant employee is not discriminated against compared to other employees similar in their ability or inability to work.
The guidance emphasizes that the Centers for Disease Control and Prevention recommends COVID-19 vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future. With that said, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement.
While a pregnant employee may not necessarily be eligible for a medical exemption, the EEOC reminds employers that they must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. In other words, “this means that a pregnant employee may be entitled to 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.”
Employers may provide vaccination incentives, but if the employer or its agent is administering the vaccine, employers should ensure that the incentive is not so substantial as to be coercive.
To incentivize vaccination, employers can provide employees and their family members with information about COVID-19 vaccines without fearing running afoul of federal anti-discrimination laws. Employers can also offer incentives to their employees, such as gifts or gift cards, to incentivize vaccination.
If the entity administering the vaccine is not the employer or its agent, there is no limit on the value of the incentive that may be offered. However, if the employer or its agent are administering the vaccine, employers must be careful. Offering an incentive in that circumstance could be viewed as coercive, and in violation of the ADA, if the incentive is too substantial.
Employers can request documentation of COVID-19 vaccination, so long as the information is kept confidential.
Employers can lawfully ask employees whether they have received a COVID-19 vaccination, and for confirming documentation, without violating the ADA. This is because the EEOC does not consider asking about vaccination status to be a disability-related inquiry barred by the ADA.
Further, GINA is not implicated when the employee uses an unrelated third party to receive the vaccine, even if the provider asks genetic-related questions because GINA’s prohibitions only apply to employers and their agents.
Employers are required under the ADA to keep employees’ vaccination status confidential. Vaccine information must also be maintained separately from personnel files, like all medical information, to be compliant with the ADA.
Some situations that might arise from employer-mandated COVID-19 vaccines and the EEOC’s new guidance require a specific legal analysis. For guidance on these issues, or other labor and employment concerns, please contact any member of the Hurwitz & Fine, P.C.’s Labor & Employment team at 716-849-8900.