On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued new COVID-19 vaccine guidance for employers. Although the updated FAQs do not address compliance with the Centers for Disease Control and Prevention’s (CDC’s) most recent mask guidance, the EEOC covers various helpful topics, including incentives for employees who get vaccinated, confidentiality of vaccine records, vaccinating subsets of employees and more. The new guidance builds on the CDC’s May 2021 vaccine guidance and the EEOC’s previous vaccine FAQs.
Below is a summary of key sections of the new guidance that address issues the EEOC either left unclear or did not expressly resolve in earlier publications.
Vaccine Mandates. The EEOC now expressly states that, subject to reasonable accommodation considerations under Title VII and the Americans with Disabilities Act (ADA), federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. See Questions K.1, K.5, K.6 and K.12. Per the EEOC, “these principles apply if an employee gets the vaccine in the community or from the employer.” However, EEOC notes it is possible that a mandatory vaccine requirement could have a disparate impact on a protected class because “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others.” See Question K.1.
Reasonable Accommodations. The EEOC’s guidance provides more detail on how to determine if an employee poses an “undue hardship” or “direct threat,” such that an employer cannot accommodate a disability (or, similarly, an individual’s sincerely held religious belief). Relevant considerations can include the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and “the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.” See Questions K.5, K.6 and K.12.
Per the EEOC, employers must still potentially accommodate fully vaccinated individuals if they request accommodation for an underlying disability because of “a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated.” For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean the vaccines may not offer the same measure of protection afforded other vaccinated individuals. See Question K.11.
Confidentiality. The EEOC expressly states that information about an employee’s vaccination status is considered “confidential medical information” under the ADA. Like all medical information, it must be kept confidential and stored separately from the employee’s hard-copy or electronic personnel file. Unfortunately, with this general rule in mind, the EEOC has not yet offered guidance for employers on how to easily identify the vaccination status of employees at the workplace in order to enforce ongoing mask mandates for non-vaccinated workers (e.g., via a badge or other outward identifier). See Question K.4.
Employer Inquiries. Employers may ask employees whether they obtained the vaccine from a third party in the community (pharmacy, personal doctor, etc.), and this question is not a “disability-related inquiry.” Likewise, employers may ask employees to provide documentation or other confirmation of the vaccination from such sources without the request being a “disability-related inquiry.” See Questions K.9 and K.15.
Employer-Administered Vaccines. Employers or their agents may offer voluntary vaccinations to certain groups of employees and not to others (e.g., assembly versus office workers), so long as the employer does not discriminate in the offering based on a protected class or otherwise violate other EEO laws. See Question K.10.
Vaccine Incentives. Employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they received a vaccine from a third-party vaccine provider. See Questions K.16 and K.18. Further, employers may offer incentives to employees who voluntarily receive a vaccination administered by the employer or its agent, so long as the incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, EEOC asserts that a large incentive could make employees feel pressured to disclose protected medical information. See Questions K.17 and K.19. EEOC further notes the following:
- Employers may not offer an incentive to an employee in return for the employee’s family member getting vaccinated by the employer or its agent, because asking the medical screening questions of the family member “would lead to the employer’s receipt of genetic information in the form of family medical history of the employee,” and the Genetic Information Nondiscrimination Act prohibits employers from providing incentives in exchange for genetic information. It is unclear whether EEOC would maintain the same position if the family member were not genetically related to the employee. See Question K.20.
- However, employers may offer to vaccinate family members (i.e., apparently even if the employer or its agent administers the vaccines) without offering the employee an incentive. See Question K.21. Despite this, per the EEOC, employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to do so. Employers must also ensure all medical information obtained from family members during the screening process is used only for the purpose of providing the vaccination, is kept confidential and is not provided to any managers, supervisors or others who make employment decisions for the employees. Finally, employers need to ensure that they obtain prior knowing, voluntary and written authorization from the family member before the family member is asked any questions about his or her medical conditions.
Updated OSHA Vaccine Guidance. In addition to the new EEOC guidance about vaccinations, the federal Occupational Safety and Health Administration (OSHA) likewise updated its message about vaccines. Previously, OSHA stated that an employer must record an adverse reaction to a COVID-19 vaccine on its OSHA 300 logs if the employer required employees to be vaccinated and the adverse reaction meets other criteria. Now, OSHA has announced that, because it does not want to appear to discourage vaccines, OSHA will not enforce the recording requirements through May 2022.
For answers to questions or additional guidance on how the revised EEOC FAQs may impact businesses, employers can contact the authors, any of the McGuireWoods COVID-19 Response Team members or their McGuireWoods labor and employment contact.