For those who have been following along, the EEOC first issued COVID-19 specific guidance in the early days of the pandemic, addressing the impact of the virus on the Americans with Disabilities Act, the Rehabilitation Act, and other EEO Laws (including the Genetic Information Nondiscrimination Act). Since then, the EEOC has updated this guidance more than a dozen times. (You can find a link to many of our previous newsletter articles discussing the guidance and its changes here.)

Last week, the EEOC once again updated its Q&As on What You Should Know About COVID-19, this time expanding technical assistance on what employers can and cannot do with regard to the COVID-19 vaccine.

Reasonable Accommodations

As we’ve said before, employers can generally require employees to receive a COVID-19 vaccination, although they may need to provide a reasonable accommodation for employees who do not get vaccinated because of a disability (including pregnancy-related conditions) or a sincerely held religious belief.

The update includes specific examples of reasonable accommodations that employers need to consider, including that unvaccinated employees in the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment. Employees who are not vaccinated because of pregnancy may be entitled to keep working if the employer makes modifications/exceptions for other employees based on disability or religion. As a best practice, any employer introducing a COVID-19 vaccination policy and requiring confirmation of vaccination should notify all employees that it will consider requests for reasonable accommodation based on disability or religion on an individualized basis.

A new Q&A (K.11) addresses the situation where a fully-vaccinated employee nonetheless requests an accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from COVID-19, despite being vaccinated. As in all cases when receiving an accommodation request from an employee, employers should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation. This typically includes obtaining information from the employee’s healthcare provider (with the employee’s consent) explaining why an accommodation is needed. For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccine does not offer them the same measure of protection as it does for other vaccinated individuals. If there is a disability-related need for an accommodation, an employer is obligated to explore potential reasonable accommodations that may be provided absent undue hardship.

Confidentiality

The update also clarified that information about an employee’s COVID-19 vaccination status is considered confidential medical information under the ADA, meaning it must be kept confidential and stored separately from the employee’s other personnel files.

Incentives

And for the first time, the EEOC update specifically addresses the practice of providing incentives to employees who voluntarily receive the COVID-19 vaccine. The EEOC unequivocally stated that an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.

But when an employee voluntarily receives a vaccine administered by the employee or its agent (versus a vaccine received at a pharmacy, public health department, or other healthcare provider in the community), any incentive (including both rewards and penalties) offered to the employee by the employer must not be “so substantial as to be coercive.” The EEOC explains:

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….[H]owever, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

Stated more simply, employers may offer any incentive—without restriction—for employees who voluntarily choose to get vaccinated in the community. But when employers offer an incentive for employees to be voluntarily vaccinated and the vaccine is administered by the employer or its agent (including third parties hired by the employer to do so) as part of a workplace vaccination program, any incentive offered cannot be so large as to be coercive. What exactly that means is still left to interpretation, as the EEOC did not provide any examples of incentives that would be permitted or those that would not.

Employers may also offer incentives for employees to provide documentation or other confirmation that the employee’s family member received a vaccination in the community, but employers cannot offer employees incentives in return for the employee’s family member to get vaccinated by the employer or its agent. Employers may nonetheless offer an employee’s family member the opportunity to be vaccinated by the employer or its agent as long as they take steps to ensure GINA compliance, but they cannot require employees to have their family members get vaccinated or penalize employees if their family members do not.

As with any employment policy, if employers have a vaccine requirement for their employees, they should be mindful that certain demographic groups may face greater barriers to receiving the vaccine and such requirement may have a disparate impact on certain employees because of their race or other protected characteristic. This particularly applies when employers require that employees be vaccinated in the community but do not have a workplace vaccination program where the vaccine is administered by the employer or its agent.

One final note. The EEOC’s update explicitly referenced the CDC’s recent guidance that generally exempts fully vaccinated people from masking requirements and stated that it is “considering the impact of this CDC guidance” on the current technical assistance – so additional changes may still be coming. Stay tuned.

By Rebecca D. Bullard, rbullard@dsda.com