Today, after much anticipation and just in time for the Memorial Day holiday, the Equal Employment Opportunity Commission (EEOC) released updated guidance on COVID-19 vaccination issues raised under federal equal employment laws. Early last year, the EEOC issued a technical assistance publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws” and it has updated the publication at various times throughout the pandemic. This most recent version includes changes to Section K concerning vaccinations in the workplace. That section was last updated in December 2020.
Here are the five things that you need to know now about the new guidance:
- Employers may require all employees physically entering the workplace to be vaccinated for COVID-19. However, employers must continue to engage in the interactive process and provide reasonable accommodations under the ADA and Title VII for eligible employees seeking an exception to the policy. Accommodations for disabilities, religious beliefs and pregnancy are all discussed. The guidance includes examples of possible accommodations, including wearing a mask, changing work hours or assignments, offering remote work, maintaining social distancing in the workplace and transferring the employee to a new job.
- When developing vaccination policies, employers should consider the risk of disparate impact, as “some individuals and demographic groups may face greater barriers to receiving a COVID-19 vaccination than others” and, therefore, may be more likely to be negatively affected.
- Employers may offer incentives (whether positive or negative) to encourage employees to voluntarily provide evidence of vaccination received through a third party such as a local pharmacy, clinic or health care provider. If the vaccination is obtained from the employer or the employer’s agent, the incentive may “not be so substantial as to be coercive.”
- The EEOC confirmed that asking employees for vaccination documentation is not a disability-related inquiry under the ADA. However, the EEOC guidance states that employers must keep vaccination information (including, for instance, copies of vaccination cards or other confirmation of vaccination status) confidential pursuant to the ADA.
- Employers may provide employees and family members with educational information about COVID-19 vaccines and the benefits of vaccination.
Employers reviewing their practices and plans for the future should carefully review the EEOC’s latest guidance. However, the COVID-19 laws and regulations affecting the workplace vary from place to place, and the EEOC’s guidance applies only to federal equal employment opportunity laws. The EEOC guidance specifically notes that it does not address the legal issues which may be raised by the Food and Drug Administration’s Emergency Use Authorization for vaccines. Further, the EEOC guidance was prepared before the CDC’s May 13, 2021 guidance concerning the use of masks by vaccinated people and expressly leaves open the possibility of changes based on that development. Employers are advised to check federal, state and local laws and regulations to ensure compliance.
The Faegre Drinker team has been monitoring vaccine-related considerations for employers and helping employers throughout the country to navigate the ever-evolving challenges of COVID-19 and to find solutions that work. If you have questions about the new EEOC guidance or need help with COVID-19 issues in the workplace, please contact a member of our team.