On Friday, May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its “What You Should Know” page relating to COVID-19 and the ADA and other related equal employment opportunity laws. The new section K, “Vaccinations,” of this EEOC guidance provides information to employers navigating the interplay between pro-vaccination endeavors and various legal safeguards in the workplace.
I. Requiring Vaccinations in the Workplace and Reasonable Accommodations
The EEOC notes that the availability of COVID-19 vaccinations brings to light concerns under the ADA, the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act. The EEOC stated that, generally, employers are not prevented by law from requiring all employees physically present in the workplace to be vaccinated, so long as reasonable accommodations are made in accordance with Title VII and the ADA. In order to determine whether an accommodation must be made, the employer will need to undergo an analysis considering (1) the employee’s reason for abstention from the vaccine (either disability or religion) and (2) any undue burden on the business. This is a fact-intensive inquiry that should be conducted with the assistance of legal counsel.
As a general note, an employer should accept an employee’s claim of religious belief, except in exceptional circumstances. An employee’s pregnancy may require accommodation under Title VII in order to prevent discrimination. If an employer has reason to doubt an employee’s claim for accommodations, the employer should consult with legal counsel before taking additional steps.
The EEOC provided a few examples of accommodations that might be made for those unable to obtain a vaccination due to disability or religious belief: wearing a face mask, social distancing, modified work shifts, periodic testing, telework, or reassignment. Of course, an employer’s vaccine requirement cannot be implemented in such a way that would disproportionately affect a group of employees based on their race, religion, sex, or national origin. As such, considerations such as accessibility to the vaccine by certain communities should be considered.
Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation.
II. Confidentiality
Employers choosing to have vaccines administered to employees by the employer or its agent should ensure they are complying with ADA requirements governing “medical examinations” by employers.
Employee medical information, such as documentation or other confirmation of vaccination is confidential under the ADA and must be stored separately from the employee’s personnel files. However, inquiring as to whether an employee obtained a COVID-19 vaccine from a third-party in the community is permitted by law and is not a “disability-related inquiry” under the ADA.
III. Encouraging Employees and their Families to Get Vaccinated
Employers can provide incentives, including both rewards and penalties, to employees to get vaccinated, provided those incentives are no coercive.
The EEOC stated that employers may provide education materials regarding the COVID-19 vaccine to employees and their families. An employer may not offer incentives for the vaccination of an employee’s family member, as such incentive would require the disclosure of the family member’s information in violation of GINA.
Educational materials may include information on vaccination sites, reasonable accommodations, alternative ways to book a vaccine appointment (besides internet access), and low-cost transportation to appointments. Notably, as of May 2021, the federal government is providing vaccines at no cost everyone ages 12 years and older.
The Rudnicki Firm continues to monitor these developments and will be available employers for questions and guidance in complying with EEOC’s new guidance on COVID-19 vaccinations.