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… and have been asking about for months.

Last Friday, we had a “breaking news” bulletin about the revised guidance published the same day by the Equal Employment Opportunity Commission about employers’ and employees’ rights when it came to COVID-19 vaccinations. We promised to provide a more in-depth look at the guidance, and this is it.

The updated guidance is available here. The guidance applies only to certain federal anti-discrimination laws — the Americans with Disabilities Act, Title VII including the Pregnancy Discrimination Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act. Employers will also need to keep up with applicable state and local laws related to COVID vaccinations.

THE “QUICK AND DIRTY”

Can employers exercise any influence over employees’ decisions to be vaccinated without violating the federal anti-discrimination laws?

Yes, they can. They can exhort employees to be vaccinated, they can provide vaccination incentives in the form of cash, prizes, or perks, and they can even flat-out require employees to be vaccinated as a condition of employment. Of course, if they’re doing more than just “exhortation,” they have to follow some rules. Otherwise, this would have been a very short bulletin.

So, it is lawful for an employer to require employees to be vaccinated for COVID-19?

Yes, it is, provided that the employer attempts to make reasonable accommodations for employees who cannot be vaccinated because of (1) a medical condition protected by the Americans with Disabilities Act, (2) a sincerely held religious belief, practice, or observance, and (3) pregnancy, maybe. (Our recommendation would be pregnancy, definitely.)

What if an employee objects to being vaccinated for some reason other than disability, religion, or pregnancy?

Although not covered in the EEOC guidance, we know of many employers who want to make exceptions or “accommodations” for employees who are unvaccinated for reasons that are not protected by law. This would be more of an employee relations issue than a legal issue. If the employer wants to accommodate these employees, it is fine to do so but not required by federal law.

Is it lawful for an employer to encourage vaccination by providing incentives to employees who are vaccinated (or penalties for those who are not)?

Generally, yes, although there are a few qualifications that we’ll discuss below.

And is it lawful for an employer to request or require proof of vaccination?

Yes. A vaccination card, a doctor’s note, or a receipt or other documentation from a pharmacy or health department should be fine. However, the employer should not ask for or accept any documentation that would reveal, for example, the employee’s answers to medical history questions asked before the vaccine is administered. That would violate the ADA.

REASONABLE ACCOMMODATION

What should the employer do if an employee asks to be excused from the vaccine requirement because of a disability, religion, or pregnancy?

First, this should be treated as a request for reasonable accommodation, even if the employee fails to use the words “reasonable accommodation.” The request should be referred to the appropriate member of management, which would often be someone in Human Resources. The designee should engage in an “interactive process” with the employee, which would include discussing ways that the employee could continue safely performing his or her job without being vaccinated. In the case of a disability or pregnancy accommodation, it might be necessary to confirm the employee’s condition and consult about possible accommodations with the employee’s health care provider. The designee should then discuss the accommodation ideas with the employee’s supervisor and any other appropriate members of management, and then make a decision.

Can you provide some examples of reasonable accommodations for an employee who cannot be vaccinated?

Some examples provided by the EEOC include requiring the unvaccinated employee to wear a mask, to observe social distancing, “work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.”

Does the EEOC have any recommended “best practices” related to reasonable accommodation?

They’re glad you asked! Yes, the EEOC recommends that employers include in their vaccination policies a statement “that the employer will consider requests for reasonable accommodation [based on disability or religion] on an individualized basis.” We would recommend including pregnancy in addition to disability and religion, and adding to this statement the contact information for the individuals to whom reasonable accommodation requests should be directed.

The EEOC also recommends that employers ensure that managers, supervisors, and others “responsible for implementing the policy” have clear instructions on “how to handle accommodation requests related to the policy.” Good idea.

Can we ever terminate an employee who cannot be vaccinated because of a disability?

The quick answer is “rarely, if ever.” The guidance says that the unvaccinated employee would have to be a “direct threat” to his or her own health or safety, or to the health and safety of others. This is a very demanding standard that requires a “significant risk of substantial harm.” In assessing the risk, the employers must consider, with respect to the individual employee, “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” In the case of an unvaccinated employee, a “direct threat” determination “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including community spread, statements from the Centers for Disease Control and Prevention, and information from the employee’s health care provider. The employee’s work environment must also be taken into account, including — among other things — whether the employee can work from home, and the number of co-workers who have been vaccinated.

Even if the employer determines that the unvaccinated employee is a “direct threat,” the employer must still consider whether reasonable accommodation would reduce or eliminate that threat. Termination would be an option only if (1) the employee were determined to be a direct threat, based on all the factors discussed above, and (2) there was no accommodation possible that would not be an undue hardship for the employer.

Do we have to make reasonable accommodations for a vaccinated employee who still has concerns about COVID related to a disability?

You might, so you should treat any such requests the same way you would treat any other request for a disability-related reasonable accommodation.

How about accommodating religious objections to the vaccine?

The EEOC has some helpful guidance here, too. First, start with a rebuttable presumption that the employee’s belief is sincere. Second, in determining whether reasonable accommodation is possible, follow the same general guidelines described above. Third, the “undue hardship” standard for religious accommodation is easier for employers than the “undue hardship” standard under the ADA. However, with telework possible for many jobs and a presumably large number of vaccinated co-workers, “undue hardship” may be difficult to prove in the religious context, too.

How about pregnancy?

The Pregnancy Discrimination Act does not actually require pregnancy accommodation. However, it does prohibit discrimination because of pregnancy or related conditions. Thus, although an employer theoretically is not required to make reasonable accommodations for pregnancy under federal law, it may not treat pregnant women less favorably than similarly situated co-workers. And here is where it gets sticky: Because employers have to accommodate employees whose disabilities or religious beliefs preclude them from being vaccinated, arguably it would be “discrimination” against pregnant employees to not accommodate them as well.

And this is why we say that employers should just go ahead and make reasonable accommodations for employees who do not want to be vaccinated while they are pregnant (or nursing).

VACCINATIONS PROVIDED BY EMPLOYERS OR THEIR AGENTS

Can an employer administer COVID-19 vaccinations on site and by its own medical team?

Yes, but the EEOC seems to want to discourage mandatory vaccinations by the employer or its agent.

Can an employer hire a health care provider to come on site and administer COVID-19 vaccinations to employees?

Yes. According to the guidance, anyone hired by the employer to provide COVID vaccinations is an “agent of the employer.” In other words, the health care provider would be acting on behalf of, or at the direction of, the employer.

Why doesn’t the EEOC seem to want employers to require employees to be vaccinated by the employers or their agents?

The vaccination itself is no problem. The problem, under the ADA, is the medical questionnaire that is given before the vaccine can be administered. Those questions “are likely to elicit information about a disability,” and therefore must be “job-related and consistent with business necessity.” According to the EEOC, to meet this standard, the employer would have to prove both (1) that the vaccine could not be administered to an employee who refused to answer the questions, and (2) that the unvaccinated employee would be a “direct threat” to his or her own health and safety, or to the health and safety of others. (See discussion about “direct threat” above. It is a very difficult standard to meet.)

The EEOC warns that employers who require employees to be vaccinated by themselves or their agents may face legal challenges: “[W]hen an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre-vaccination inquiries, and an employer would have to justify them under the ADA.” (Emphasis added.)

If the employer requires employees to be vaccinated by the employer or its agent, does that violate the GINA?

No. None of the current pre-vaccination questionnaires related to the Pfizer, Moderna, and Johnson & Johnson vaccines request “genetic information.” (Under the GINA, family members’ medical information is “genetic information” of the employee.) The questions all relate to the employee, not to the employee’s family members. Administration of the vaccine also does not implicate the GINA.

What if the employer provides vaccinations on site only as a convenience to employees but also allows employees to be vaccinated elsewhere if they prefer?

That’s better. If employees aren’t required to get the vaccination from the employer or its agent, then the answers to the questionnaire will be considered “voluntary.” The only caution for employers in this instance is that they avoid pressuring employees in any way to have the vaccinations done by the employer or its agent.

VACCINATIONS PROVIDED BY THIRD PARTIES

Is it easier if the employer lets employees be vaccinated by third parties — the employee’s health care provider, a pharmacy, or a health department?

Yes!!! Using third parties will shield the employer from any confidential medical information about the employee, and mere proof of vaccination is not considered a “medical inquiry” for ADA purposes.

If the employer allows employees to be vaccinated by third parties who perform medical screening, does that violate the GINA?

No. Because the only information the employer gets is proof of the vaccination, there is no GINA issue at all.

VACCINATION INCENTIVES

Can an employer offer incentives to encourage vaccinations (as opposed to requiring vaccinations)?

Yes. But the rules will be different depending on (1) whether the vaccinations are administered by third parties, (2) whether the vaccinations are administered by the employer or its agent, (3) whether the incentive is for the vaccination of the employee, and (4) whether the incentive is for the vaccination of the employee’s family member.

What’s the rule if the vaccinations are administered by third parties?

The rule is that there is no rule. The employer can offer incentives for employee vaccinations and vaccinations of employees’ family members without limit.

What’s the rule if the vaccinations are administered by the employer or its agent?

In this case, the incentives for employee vaccinations are fine as long as they are “not so substantial as to be coercive.” The EEOC fears that, “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

Incentives for vaccinations of family members would violate the GINA because medical questions to the family member would reveal the employee’s “genetic information.”

However, the employer or its agent can lawfully provide COVID vaccines to employees’ family members as long as they do not offer incentives for family member vaccinations.

These rules apply even if the employee or family member has the option of going to a third party for vaccination.

CONFIDENTIALITY

What are the rules regarding confidentiality?

Any information obtained in the vaccination process — proof of vaccination, pre-vaccination medical questionnaire answers, requests for reasonable accommodation — must be treated as confidential. Any documentation should be placed in the employee’s confidential medical file, not the personnel file. Members of management should not discuss the medical details of an employee (or an employee’s family member) with others except on a strict need-to-know basis. Employers also should not disclose to co-workers that a particular employee is getting a reasonable accommodation.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.

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