On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated and expanded on its guidance about how federal equal employment opportunity laws (“EEO laws”) may apply to potential employer requirements that employees be vaccinated against COVID-19 (the “Guidance”). The original EEOC guidance on the same subject was summarized in a previous Goodwin Client Alert.
The Guidance is in Section K of the EEOC’s Technical Assistance entitled "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws." As was the case in the EEOC’s original guidance, the revised and expanded Guidance focuses primarily on disability discrimination issues under the Americans with Disabilities Act (the “ADA”), religious discrimination issues under Title VII of the Civil Rights Act of 1964 (“Title VII”) and genetic information discrimination issues under the Genetic Information Nondiscrimination Act (“GINA”).
Confirmation of the Permissibility of Mandatory Vaccination Programs under EEO Laws, Subject to Qualifications
The principles established in the original guidance, as summarized in our previous Client Alert, remain unchanged. The new Guidance reiterates that federal employment discrimination laws do not prohibit employers from mandating vaccinations for COVID-19, provided that employers comply with confidentiality obligations, provide reasonable accommodations for employees with disabilities and employees with religious objections to vaccination, consider possible obligations to pregnant employees who seek an exemption from a vaccination requirement due to pregnancy, and take into account rights under GINA.
The Guidance also emphasizes that its focus is limited to the application of EEO laws. There have been some legal challenges to mandatory vaccination policies based on Section 564 of the Federal Food, Drug and Cosmetic Act. Those legal arguments are premised on the Emergency Use Authorization status of the currently available vaccines. The legal arguments based on that provision face significant hurdles, but to date there have been no published court decisions reaching conclusions on this issue, and therefore mandatory vaccination policies remain subject to potential challenge on that basis, at least for the time being. That potential challenge will be rendered moot once vaccinations receive full approval from the Food and Drug Administration. Applicable state and local laws, some of which prohibit employers from requiring vaccinations and protect those who refuse vaccinations for any reason, also must be considered before adopting a mandatory vaccination program.
New Key Points of the Guidance
The Guidance makes a number of new key points:
1. Employers may offer vaccination incentives to employees, but the incentives are subject to limits if the employer or its agent administers the vaccinations
The development in the Guidance that has garnered the most attention in the media is the EEOC’s statement that employers may offer incentives to employees to voluntarily provide documentation that they have been vaccinated by those other than the employer or its agents, whether by a pharmacy, a public health department or a health care provider. The EEOC’s rationale is that a request for such documentation is not a disability-related inquiry for purposes of the ADA, nor does it involve a request for genetic information under GINA. Since such an inquiry is not covered by the ADA, there is no limit to what an employer could choose to offer an employee who provides documentation of having been vaccinated in the community.
The standards are different, however, for employees who are vaccinated by the employer or an agent of the employer. In such circumstances, as discussed in the original guidance, the employer or agent will necessarily be asking medical screening questions, which are subject to ADA considerations. The Guidance expresses the EEOC’s concern that in such circumstances, “a very large incentive could make employees feel pressured to disclose protected medical information.” Accordingly, if an employer or its agent administers a COVID-19 vaccine the incentives may not be “so substantial as to be coercive.”
2. Employers may offer vaccination incentives to employees for proof of their family members’ vaccinations unless the employer or its agent administers the vaccinations
Employers that do not administer vaccinations directly or through their agents similarly may offer employees incentives to provide proof that their family members have been vaccinated.
The answer is different for employers that administer vaccinations directly or through their agents. An employer may not offer any incentives to employees to have the employer or its agent vaccinate family members, since asking pre-vaccination medical screening questions would lead to the receipt of genetic information about the employee, as the questions would include family medical history questions. However, if incentives are not offered and appropriate confidentiality protections are in place, an entirely voluntary process for family member vaccinations by the employer or its agent is permissible.
3. Employers may require proof of vaccination, but the information that they collect about their employees’ COVID-19 vaccinations must be treated as confidential medical information under the ADA
The confidentiality requirement applies regardless of whether an independent health care provider administers the vaccination or the employer or an agent does so. In either case, the information must be treated as confidential medical information and stored separately from employees’ personnel files. Importantly, employers are not required to collect proof of vaccination documentation and, instead, may require employees to show a CDC card or other confirmation information to a Human Resources member for visual inspection in which case no filing in the employee medical file would be necessary. An employer may keep a listing of vaccinated and unvaccinated employees but it should restrict access and disseminate information about vaccination status on a need to know basis for safety rule administration purposes. Of course, employees may elect to disclose their own vaccination status in the workplace.
4. If an employer requires COVID-19 vaccinations, an employee who seeks not to be vaccinated because of a disability is responsible for requesting an accommodation, while the employer is responsible for ensuring that managers and supervisors properly recognize and process such requests
A request by an employee for an exemption from a mandatory vaccination policy is a form of a reasonable accommodation. It is well established that in general, employees are responsible for initiating requests for reasonable accommodations. The same principle applies to accommodations consisting of exemptions from a mandatory vaccination policy.
However, employees who seek an exemption are not required specifically to refer to the ADA or use the term “reasonable accommodation.” An employee may make a request for a reasonable accommodation by expressing a need for an adjustment or change at work for a reason related to a medical condition.
The EEOC recommends that employers that institute a mandatory vaccination policy take steps to foster the reasonable accommodation process. It recommends that such an employer:
- Notify employees that it will consider requests for reasonable accommodation on the basis of disability on an individualized basis;
- Ensure that managers and supervisors understand that an employee who states a need for an exemption from a vaccination requirement based on a medical condition has sufficiently initiated a request for a reasonable accommodation; and
- Provide guidance to managers and supervisors on how to handle reasonable accommodation requests.
The EEOC recommends that all employers rely on the CDC’s Essential Workers CDC Toolkit, updated on May 20, 2021 for guidance on workplace education.
5. If an employee seeks an exemption from a mandatory vaccination policy based on a disability, the employer should follow a two-step process of determining if not being vaccinated poses a direct threat and assessing whether a reasonable accommodation would reduce or eliminate the threat
The Guidance establishes a two-step process if an employee seeks an exemption from a mandatory vaccination policy based on a disability. First, the employer must show that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. The direct threat standard is a daunting one — it requires the employer to show that the employee poses a “significant risk of substantial harm.” Multiple factors are considered in assessing whether this standard is met including the level of community spread and the type of work environment.
Second, if and only if the direct threat standard is satisfied, the employer must consider whether a reasonable accommodation that does not cause undue hardship for the employer would reduce or eliminate the threat. Examples of steps that may sufficiently reduce or eliminate the threat are requiring the employee to wear a mask, changing the work environment, whether through ventilation or through reducing contact with others at the workplace or permitting telework, among others. It is possible that in some cases reasonable accommodations would cause undue hardship, in which case an accommodation need not be provided, but the standard for undue hardship for ADA purposes is generally difficult for an employer to satisfy.
If the direct threat standard is not satisfied, perhaps because community spread is low and the employee does not have frequent contact with others in connection with the employee’s job, an employee with a disability or a pregnant employee who does not get vaccinated may argue that the employer may not require compliance with the vaccination requirement. Further, the employee with a disability or pregnant employee could argue that the employer cannot require mask wearing or social distancing since the reasonable accommodation step is never reached. To avoid a situation where certain unvaccinated employees would be excused from mask and social distancing requirements, one solution may be to establish a policy of having all unvaccinated persons (regardless of the reason for not getting vaccinated) wear masks and socially distance in the workplace. Such a policy may be more defensible if the employer encourages rather than mandates that employees be vaccinated. In any event, employers should consult with counsel about any policy that requires only a subset of employees to wear masks and socially distance, especially in areas where community spread is low and employee vaccination rates are high.
6. Employers should be mindful of established principles when considering reasonable accommodations
Some of the longstanding principles about the reasonable accommodation process that the EEOC emphasizes in the Guidance include the following:
- The reasonable accommodation process should be flexible and interactive.
- The employer may obtain medical documentation about the employee’s disability, but should only do so if it finds that obtaining medical information is necessary to the process.
- Before denying an accommodation request, the employer should consider all reasonable options.
- The employer should consider then-current Centers for Disease Control guidance.
- If an employee is given a reasonable accommodation, the employer should ensure that it does not disclose that to those beyond the scope of those to whom confidential medical information may be provided.
7. Employers also need to consider requests for exemption from mandatory vaccination that are based on religious belief, practice or observance
As with disability-based accommodations, employers need to consider requests for exemption from mandatory vaccination based on religious belief, practice or observance as a reasonable accommodation, unless the accommodation would cause an undue hardship. The EEOC advises that an employer should “ordinarily assume” that a request for an accommodation for religious purposes is grounded in a sincerely held religious belief, practice or observance, but an employer may seek further information if it “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.” However, the Guidance also acknowledges that the undue hardship standard for religious discrimination purposes is less stringent than that under the ADA — an undue hardship for religious discrimination purposes is an action that imposes more than minimal cost or burden on the employer. State and local law counterparts to federal religious discrimination laws may provide more robust protection to employees who seek to avoid a vaccine requirement for religious reasons. In addition, legislation is pending in a number of states to expand exemption rights based on religion and on other grounds.
8. Job modifications may also be required for employees who seek an exemption from a vaccine requirement due to pregnancy
Consistent with EEOC guidance described in an earlier Client Alert, pregnant employees may not be “discriminated against compared to other employees similar in their ability or inability to work.” This standard may require such modifications as telework, schedule changes, assignment changes or leaves of absence for pregnant employees who seek an exemption from a mandatory vaccination requirement.
Conclusion
The Guidance resolves an outstanding question concerning offering incentives for vaccinations. It also provides guidelines for employers to address discrimination issues that may arise for those who implement mandatory vaccination programs.
Any employer that adopts a vaccination program should do so carefully and with the advice of employment counsel. Those that decide to mandate vaccinations need to be extra vigilant and take into account potential discrimination issues, particularly concerning disability and religious considerations, as outlined in the Guidance, in developing their approach and considering exceptions.