On Friday, May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance (last revised in December 2020) to provide employers with more information and tips on how to best handle and administer mandatory COVID-19 vaccination policies, reasonable accommodations, employees’ vaccination information and vaccine incentives. The guidance reaffirms that employers may require that employees get vaccinated against COVID-19 as a condition to returning to work so long as employers provide reasonable accommodations that do not impose an undue hardship on the employer’s business to employees who cannot get vaccinated due to a disability or sincerely held religious belief, practice or observance. The EEOC also notes that it is still considering the impact of the May 13, 2021 guidance from the Centers for Disease Control and Prevention (“CDC”) on its own guidance so employers should stay tuned for additional updates from the EEOC.
Key takeaways from the updated guidance include:
- Employers need to be mindful of the possibility that mandatory vaccination polices may have a disparate impact on certain demographic employee groups as they may face greater barriers to receiving the COVID-19 vaccine than others.
- Pregnant employees need to receive reasonable accommodations regarding COVID-19 vaccination requirements.
- Both fully vaccinated and unvaccinated employees may request reasonable accommodations. For example, a fully vaccinated employee who is immunocompromised may be entitled to a reasonable accommodation.
- Reasonable accommodations for unvaccinated employees could include: (a) an unvaccinated employee wearing a face mask; (b) working at a social distance from coworkers or non-employees; (c) working a modified shift; (d) getting periodic tests for COVID-19; (e) being given the opportunity to telework; or (f) as a last resort, accepting a reassignment.
- Information about an employee’s COVID-19 vaccination is confidential medical information under the Americans with Disabilities Act (“ADA”). Accordingly, any documentation regarding the COVID-19 vaccination “or other confirmation of COVID-19 vaccination” must be kept confidential and in the employee’s ADA file, separate and apart from the employee’s personnel file.
- Factors employers should consider when assessing whether an unvaccinated employee presents a direct threat in the workplace should include an analysis of whether: (a) the employee works alone or with others or works inside or outside; (b) the available ventilation; (c) the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; (d) the number of partially or fully vaccinated individuals already in the workplace; (e) whether other employees are wearing masks or undergoing routine screening testing; and (f) the space available for social distancing.
- Best practices for mandatory vaccination policies include: (a) notifying all employees that the employer will consider requests for accommodation on an individualized basis; and (b) providing managers and supervisors responsible for implementing a mandatory vaccination policy training regarding how to handle accommodation requests related to the policy.
- In addition to educating employees about the COVID-19 vaccine and its benefits, employers may use incentives (both rewards and penalties) to encourage employees to voluntarily disclose their vaccination status and/or become vaccinated. If the employer administers the vaccine (as opposed to a third party provider) then such incentives cannot be so substantial as to be coercive.
- Employers may not use employee incentives to incentivize an employee’s family member to receive a vaccination from an employer or its agent except that employers may offer incentives to employees to confirm that their family members received the COVID-19 vaccine from their own medical provider. Employers cannot require employees to have their family members get vaccinated and cannot penalize employees if their family members decide not to get vaccinated.