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EEOC Updates and Expands Its COVID-19 Employer Technical Assistance Questions and Answers

Labor & Employment Otto Immel, Lindsey Davis, Kaitlin Phillips, Brenna Wildt

Late last week—following news that 50% of American adults have been fully vaccinated against COVID-19—the U.S. Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance addressing frequently asked, COVID-related questions arising under the federal equal employment opportunity (EEO) laws.

In its updated technical assistance guide, the EEOC now confirms—as Quarles & Brady previously advised—that the federal employment discrimination laws do not prevent employers from incentivizing or requiring employee vaccination, and likewise do not bar employers from requesting proof of employee vaccination. The EEOC expands upon these key recommendations and others, making it clear that employers have significant leeway in implementing COVID-19 vaccination policies, but must administer them in a non-discriminatory manner, including by providing reasonable accommodations when circumstances require.

Requiring Vaccination

With its updates, the EEOC confirms that employers may require all employees physically entering the workplace to be vaccinated against COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII), and also remain cognizant of other EEO considerations.

With respect to employees who cannot get vaccinated because of a disability or a sincerely-held religious belief, employers must provide a reasonable accommodation unless doing so would impose an undue hardship. Such reasonable accommodations may include exempting such employees from vaccination requirements but requiring that they wear a mask, social distance, participate in periodic COVID-19 testing, and/or telework or work modified hours. In addition, the EEOC cautions that some fully-vaccinated employees may still require reasonable workplace accommodations as a result of the pandemic, for example if an underlying medical condition either means that the vaccine may not offer the same measure of protection to the employee or creates a heightened risk of severe illness from COVID-19. As with all requests for accommodations, employers should engage such employees in an interactive process to determine if there is a disability-related need for accommodation. As a “best practice,” the EEOC recommends that before employers implement mandatory vaccination programs, they notify employees that requests for reasonable accommodation will be considered, and instruct managers and supervisors on how to handle such requests.

In addition, the EEOC also affirms that employers must ensure pregnant employees are “not being discriminated against compared to other employees similar in their ability or inability to work.” Pregnant employees may be entitled to job modifications—including telework, modifications to work schedules or assignments, and leave—to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Essentially, employers must accommodate pregnant employees who do not get the vaccine in the same manner that employers must accommodate employees who cannot get the vaccine because of disability or religious objection.

Finally, employers should be attentive to potential claims of disparate treatment, bearing in mind that some demographics may face greater barriers to COVID-19 vaccination, and therefore may be more negatively impacted by mandatory vaccination programs. Such a disparate impact may arise where obtaining vaccination (e.g., due to time off, location, or lack of transportation) is more challenging for various segments of the population. In order to reduce or eliminate this disparity, employers might offer paid time off for vaccinations, provide information with respect to vaccination sites and offer transportation, or arrange for on-site vaccine clinics.

Incentivizing Vaccination

The EEOC also makes clear that employers are not prevented from offering incentives to employees who receive the COVID-19 vaccine. Employers that do not administer vaccines to their employees are not limited by federal employment laws in the types and amounts of incentives they may offer. For example, an employer could provide a $500 bonus to each employee who uploads a copy of his or her vaccine card, demonstrating that his or her healthcare provider, neighborhood pharmacy, or state or local health department administered the vaccine.

However, employers that self-administer vaccines to their employees, or who do so through an agent, may only offer incentives that are not “coercive.” The EEOC draws this distinction because under the foregoing circumstances, employees must answer pre-vaccination disability-related screening questions and a large incentive could make employees feel pressured to disclose their protected medical information directly to their employer or their employer’s agent administering the vaccine.

The EEOC’s updated technical assistance stops short of clarifying just what constitutes an impermissible, “coercive” incentive. The EEOC also stops short of clarifying who qualifies as an employer’s “agent” for the purposes of triggering the “coercive incentive” limitation. However, given the EEOC’s proffered reason for this limitation—pressure from the employer to disclose protected medical information—on-site vaccinations from an independent provider that manages the entire screening/vaccination process would likely not be considered an “agent of the employer.” Still, employers should make clear to the provider and their employees that the provider is independent and will not share the employees’ medical information with the employer. Further guidance on this point may be addressed in a subsequent FAQ.

The updated guidance confirms that employers may not offer incentives for family members of employees to become vaccinated by the employer or its agent. However, employers may offer incentives for family members of employees to become vaccinated by a third party. Further, all employers may provide employees and their families with educational information about COVID-19 inoculation to raise awareness about benefits of the vaccine and to address common questions and concerns. The EEOC suggests several resources for this type of information, including the federal government’s vaccines.gov website, and the Centers for Disease Control and Prevention’s (CDC) repository of local health department information.

Proof of Vaccination

Employers may require employees to provide documentation or other confirmation of vaccination when an employer incentivizes or requires vaccination. Requesting proof of vaccination is not a disability-related inquiry covered by the ADA, nor does it implicate the Genetic Information Nondiscrimination Act (GINA). Similarly, the EEOC clarifies that employers who do not incentivize or mandate vaccination may still opt to have employees disclose their vaccine status, as long as questions are limited to whether or not an employee is vaccinated (i.e., including the type of vaccine and dates administered) and do not inquire as to why an employee may have chosen not to get the vaccine.

Because proof of vaccination is medical information as defined under the ADA, employers must treat this information confidentially and store it separately from the employee’s personnel file.

Notably, this version of the technical assistance guide was prepared before the CDC revised its recommendations for fully-vaccinated individuals, and therefore does not specifically address the impact of the CDC’s updated guidance, nor does it address state-law considerations that may impact employer COVID-19 policies. However, the EEOC has confirmed that it will continually clarify and update this technical assistance to ensure that it provides easy-to-understand, pertinent and helpful information.

For the most up-to-date information on the ongoing COVID-19 vaccine distribution process, and for guidance on how additional developments might impact the EEOC’s technical assistance resource, contact your local Quarles & Brady attorney or: