Employment Law Update

The Equal Employment Opportunity Commission (EEOC) updated its extensive COVID-19 guidance on May 28, 2021, to address common questions surrounding vaccines in the workplace. Following are some of the most important highlights of the revised FAQs.

Mandatory Vaccinations

The guidance clarifies that employers may generally require all employees physically entering the workplace to be vaccinated for COVID-19, subject to the need to provide a reasonable accommodation for employees who cannot be vaccinated because of a disability under the Americans with Disabilities Act (ADA); a sincerely held religious belief, practice or observance under Title VII of the Civil Rights Act of 1964; or pregnancy.

The EEOC suggests that before instituting a mandatory vaccination program, a “best practice should include providing managers, supervisors and other people responsible for implementing the policy with clear information about how to handle accommodation requests." (See FAQ K 1.)

Reasonable Accommodations

The EEOC emphasizes that employers that require vaccination for all employees entering the workplace must provide a reasonable accommodation for employees who cannot be vaccinated due to a disability, religious belief or pregnancy.

Possible accommodations suggested by the agency include requiring the employee to wear a face mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be allowed to telework or accept a reassignment.

Disabilities

With respect to employees seeking an accommodation under the ADA, the EEOC stressed the need for employers to engage in the interactive process in an attempt to identify a reasonable accommodation.

Employers may require an individual with a disability to meet safety-related standards, such as requiring a COVID-19 vaccination, if the standard is job-related and consistent with business necessity.

However, if an employee cannot be vaccinated because of a disability, the EEOC states that an employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.

A direct threat is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. Determining whether a direct threat exists is a two-step process:

1. Determining if a direct threat exists and
2. If it exists, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To make the individualized assessment of whether an unvaccinated employee poses a direct threat in the workplace, an employer must assess the employee’s ability to safely perform the essential functions of the job by examining the following:

• Duration of the risk,
• Nature and severity of the potential harm,
• Likelihood that the potential harm occurring. and
• Imminence of the potential harm.

The EEOC states that the direct threat determination must be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. The determination of direct threat should also take into account the employee’s work environment, including:

• Whether the employee works alone or with others or works inside or outside;
• Availability of ventilation;
• Frequency and duration of direct interaction the employee typically will have with other employees and/or nonemployees;
• Number of partially or fully vaccinated individuals already in the workplace;
• Whether other employees are wearing masks or undergoing routine screening testing; and
• Space availability for social distancing.

Even assuming the employer concludes that the unvaccinated employee would pose a direct threat, the employer must still consider whether they could provide a reasonable accommodation that would reduce or eliminate that threat.

Just as with any ADA situation, while an employee who does not receive a COVID-19 vaccine due to a disability must let the employer know that he or she needs a reasonable accommodation, the employee does not need to mention the ADA or use the phrase “reasonable accommodation.” As a result, it is important that supervisors and human resource employees understand how to recognize an accommodation and where in the company to refer employees who may need an accommodation.

The EEOC reiterated its previous guidance that where an employer requires employees to get a COVID-19 vaccine from the employer or its agent, the ADA’s restrictions on an employer making disability-related inquiries or medical examinations of its employees apply to the screening questions asked before administering the vaccine, because the questions are likely to elicit information about disability.

As a result, the ADA requires that the questions must be “job related and consistent with business necessity,” which requires the employer to “have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.”

By contrast, if the employer offers to vaccinate its employees on a voluntary basis, and the employee’s answers to the questions are voluntary, the  employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity. Similarly, the job-related test is not implicated where employees obtain the vaccine from third parties in the community.

Finally, the EEOC notes that even employees who have been fully vaccinated may seek a reasonable accommodation based on disability if their medical conditions may mean that the vaccines may not offer them the same level of protection as for other vaccinated individuals. (See FAQs K 5-8 and 11.)

Religious Belief

Employers must provide a reasonable accommodation to employees who object to being vaccinated based upon a sincerely held religious belief, practice or observance. Previous EEOC guidance has explained that the definition of “religion” under Title VI is broad and protects beliefs, practices and observances with which the employer may be unfamiliar.

While the EEOC states that an employer should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance,” if the employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.

As with the ADA, Title VII requires an employer to engage in an interactive process to determine if it can provide a reasonable accommodation without incurring undue hardship. Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer, which is an easier standard for employers to meet than the ADA’s undue hardship standard. (See FAQ K 12.)

Pregnancy

Employees may seek job adjustments or may request an exemption from a COVID-19 vaccination requirement due to pregnancy. Under the Pregnancy Discrimination Act of 1978 and, if applicable, Maryland's pregnancy-related disability law, employers must ensure that pregnant employees are not discriminated against compared with other employees similar in their ability or inability to work. According to the EEOC, 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.” (See FAQ K 14.)

Incentives

The new guidance removes lingering doubts about possible restrictions under the ADA or the Genetic Information Nondiscrimination Act (GINA) on the amount or type of the incentive offered to employees to “voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community.”

The new guidance clarifies the EEOC’s previously muddled pronouncements on vaccine incentives, which left many employers struggling to determine whether their vaccination incentive programs were legal. As recently as January, the EEOC’s position was that ADA wellness program rules limited employers to offering only “de minimis” incentives, such as “a water bottle or gift card of modest value” for participating, even while state governments have been offering million-dollar lottery prizes to encourage people to get vaccinated. That guidance was withdrawn by the incoming Biden administration, leaving employers with no official guidance.

The new guidance opens doors to various employer vaccine programs from cash bonuses and days off to lotteries and other contests. Nevertheless, the guidance is not without limitations and the following are a few important points:

• The EEOC guidance permits employers to offer an incentive for employees to provide “documentation” that the employee was administered the vaccine. Accordingly, any employer vaccine incentive program should specify that the incentive is for presenting “documentation or other confirmation” that the employee received a vaccination on their own from a pharmacy, public health department or other health care provider. (See FAQ K 16.)
   
• The removal of limitations on the size and type of incentive applies only where the employee receives the vaccine “on their own.” If the vaccine is administered by the employer or the employer’s agent, then “any incentive [which includes both rewards and penalties] is not so substantial as to be coercive.” (See FAQ K 17.)
   
• GINA limits the incentives employers can offer to employees to have their family members be vaccinated. (See FAQs K 18-21.)

Requiring Proof of Vaccination

The EEOC reaffirmed its previous guidance that it is not a “disability-related inquiry” under the ADA for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider or public clinic. In addition, the employer may request documentation or other confirmation of vaccination. (See FAQ K 9.)

Confidentiality

The EEOC notes that the ADA requires employers to maintain the confidentiality of employee medical information, which includes “documentation or other confirmation of COVID-19 vaccination.” To the extent an employer requires employees to present documentation or other confirmation of vaccination, “this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.” (See FAQ K 4.)

Educating Employees

The EEOC states that employers can encourage their employees to get vaccinated by educating them about the vaccine and providing a list of government resources about the vaccine. (See FAQ K 3.)

The preceding article is just a summary. If you have any questions about the EEOC’s new guidance, or implementing vaccine-related policies, please contact Charles R. Bacharach or Theodore P. Stein.

For additional information on the impact of the coronavirus, visit our information hub for a list of up-to-date content.

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

Theodore P. Stein
410-576-4229 • tstein@gfrlaw.com