UPDATED EEOC GUIDANCE ON COVID-19 VACCINATION POLICIES AND PRACTICES
On May 28, 2021, the EEOC issued its long-awaited update to its December 2020 guidance regarding COVID-19. The update addresses issues related to requirements and incentives for vaccination, accommodating workers who may be unable or unwilling to obtain a vaccination for medical or religious reasons, and confidentiality.
Importantly, the guidance answers questions left unanswered in December 2020 and many frequently asked questions about COVID-19 vaccination policies and practices. Here are some of the most important questions with answers in accordance with the updated EEOC guidance:
- Question: Can employers require employees who physically enter the workplace to be vaccinated?
Answer: Yes, subject to the obligation under the Americans with Disabilities Act (ADA) and Title VII to make reasonable accommodations for employees who are unable or unwilling to be vaccinated because of a disability or sincerely held religious belief, practice or observance, unless providing a reasonable accommodation would pose an undue hardship on business operations. Reasonable accommodations include face masks, socially-distanced work, modified shifts, periodic tests for COVID-19 or the ability to telework.
In addition, employers may only exclude employees from the workplace who have not been vaccinated because of a disability if they pose a “direct threat” to the health or safety of the employee and others in the workplace. As the EEOC explains, this consideration involves an individualized assessment of the employee’s ability to safely perform essential job functions in light of the (1) duration of the risk, (2) nature and severity of the potential harm, (3) likelihood that the potential harm will occur and (4) imminence of the potential harm. The assessment should be based on reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Likewise, assessment should take into account work environment, available ventilation, frequency and duration of direct interaction with others, number of partially or fully vaccinated individuals already in the workplace, extent to which other employees are wearing masks or undergoing routine screening, and space available for social distancing.
- Question: Can employers offer incentives to employees to voluntarily confirm that they received a vaccination on their own from a health care provider in the community?
Answer: Yes, provided employers keep that information confidential as required by the ADA.
- Question: Can employers set up programs to administer vaccines to employees and offer incentives to employees to voluntarily receive a vaccination administered by the employer?
Answer: Yes, provided that any incentive is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. This incentive limitation does not apply if an employer offers an incentive to employees to voluntarily confirm that they received a vaccination on their own.
The EEOC does not, however, state what constitutes a “substantial” or “coercive” incentive. Legal and other publications addressing what these terms mean suggest that a $100 incentive would generally be appropriate.
- Question: Can employers provide employees and their family members with educational materials regarding vaccination?
Answer: Yes, including materials available through the EEOC and other federal agencies.
Importantly, the EEOC’s guidance only covers federal equal employment opportunity laws. Employers still must assess other federal laws and state and local laws to fully consider potential exposure before deciding whether to require and incentivize vaccinations.
For instance, one of the state laws that employers must consider is the Indiana Worker’s Compensation Act. If an employer provides incentives to employees for vaccination, and an employee has a reaction from the vaccine, the reaction could result in a compensable worker’s compensation claim. The incentive brings the vaccination within the course of and arising out of employment.
The EEOC prepared its guidance prior to the May 13, 2021, guidance from the Centers for Disease Control and Prevention regarding fully vaccinated individuals, which provides that fully vaccinated individuals need not wear masks or socially distance. The EEOC will continue to consider the CDC’s guidance but it is not certain whether the EEOC will update its guidance based on the CDC’s guidance.
The full EEOC guidance is available here.
Kightlinger & Gray employment attorneys are here to help. Please contact us to answer any questions you may have regarding COVID-19 and other employment-related issues.
Marcia A. Mahony
Marcia A. Mahony
Kenneth J. Kleppel
Kenneth J. Kleppel