Update: On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 FAQs, clarifying testing and other issues related to workplace safety. Of note, for employers to require employees to be tested for COVID to return or continue to be at work, the testing must be “job-related and consistent with business necessity.” As such, employers will need to assess whether the current state of the pandemic and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. For more information on the updated guidance, see the EEOC’s COVID-19 FAQs.
On May 28, 2021, the EEOC released updated guidance, which addresses how employers can implement vaccination policies in compliance with federal equal employment opportunity (EEO) laws, including the Americans with Disabilities Act (ACA), the Rehabilitation Act, the Genetic Non-Discrimination Act (GINA), and Title VII of the Civil Rights Act. The guidance confirms our previous recommended best practices on employer vaccination policies, which we discussed in our prior blogs.
The EEOC guidance provides the following:
- Employer-Mandated Vaccinations: Federal EEO laws do not prevent employers from requiring employees physically entering the workplace to be vaccinated for COVID-19, as long as they provide reasonable accommodations for employees who do not get vaccinated because of a disability or a sincerely held religious belief, unless providing an accommodation would pose an undue hardship on the employer’s business.
- Examples of Accommodations: The EEOC provides examples of reasonable accommodations for employees who do not get vaccinated due to a disability or sincerely held religious belief and who are entering the workplace, including wearing a face mask, working at a social distance from co-workers and non-employees, working a modified shift, getting periodic tests for COVID-19, providing the opportunity to telework, or accepting a reassignment. Employers may also need to provide reasonable accommodations for employees who are not vaccinated because of a pregnancy if they make modifications or exceptions for other employees. These accommodations may be the same as those made for employees who do not get vaccinated due to a disability or religious belief.
- The EEOC outlines what employers should do in situations where employees do not get vaccinated due to a disability, religious belief, or pregnancy, including how employers should respond if an employee requests an exemption or reasonable accommodation. For more, see the EEOC guidance.
- Employer-Provided Educational Materials: Employers may provide employees and their family members with information to educate them about COVID-19 vaccines. The EEOC lists resources that employers can use here (under Section K3).
- Proof of Employee COVID-19 Vaccination: The EEO laws themselves do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination status.
- Employer Incentives:
- For Voluntarily Providing Documentation of Employee and Family Member’s Vaccination: Employers can offer an incentive to employees to voluntarily provide documentation of their own or their family member’s vaccination that was obtained from a third party, such as from their doctor, pharmacy, or public health department.
- For Employees Voluntarily Receiving a Vaccination Administered by the Employer or their Agent: Employers can offer an incentive (which includes both rewards and penalties) for employees to voluntarily receive a vaccination through the employer or its agent, as long as the incentive is not so substantial as to be coercive. Because vaccinations require employees to answer pre-screening disability-related questions, a large incentive could make employees feel pressure to disclose protected medical information.
- For Employee’s Family Members Voluntarily Receiving a Vaccination Administered by the Employer or their Agent: Employers cannot offer incentives to employees for their family members to voluntarily receive a vaccination through the employer or its agent. However, employers can offer an employee’s family members the opportunity to be vaccinated as long as employers obtain written authorization from the family member before they are asked any medical questions, all medical information obtained during the pre-screening process is used only for the vaccination, the information in kept confidential, and it is not provided to any managers or supervisors.
- Confidentiality of Employee COVID-19 Vaccination: Employees’ COVID-19 vaccination status is confidential medical information under the ADA. The ADA requires employers to keep this information confidential and store it separately from employees’ personnel files.
For more on the EEOC guidance, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
In light of the new EEOC guidance, employers may want to review any vaccination policies to ensure they are compliant.