Frankfurt Kurnit Klein & Selz

June 4th, 2021

Vac to Work: EEOC Provides New Guidance on Vaccine Requirements, Incentives, and Documentation Requests

On May 28, 2021, the Equal Employment Opportunity Commission updated its ongoing guidance on COVID-related labor and employment rules, “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updates provide crucial information for employers working through their return-to-work plans. Here’s a summary of the changes:

• Employers may require employees to be vaccinated, but should have a process for fielding reasonable accommodations requests. The EEOC confirmed that the federal Equal Employment Opportunity (EEO) laws do not prohibit vaccine mandates, subject to two requirements. First, employers may not require employees with genuine religious objections and disabilities (including pregnancy) to be vaccinated unless they would pose a “direct threat” to the health and safety of others in the workplace or to themselves. This “direct threat” determination requires employers to make an individualized assessment of the employee’s ability to safely perform the essential functions of their job. Employers should base their decision on factors such as the duration of the risk, the nature and severity of the risk, the likelihood of occurrence, and the imminence of the potential harm the employee poses. Second, even if the employee does pose a direct threat, employers must consider offering the employee a reasonable accommodation. The EEOC therefore encouraged employers to have a system in place for handling reasonable accommodations requests. 
• Employers must implement vaccination mandates fairly. The EEOC cautioned employers from implementing vaccine requirements that treat employees differently based on race, color, religion, sex (including pregnancy), or other protected categories under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act. Similarly, the EEOC emphasized that employers should consider and may have to respond to claims that their vaccine requirements have a disparate impact upon, or disproportionately exclude, employees in protected categories.
• Vaccinated employees may require reasonable accommodations too. The EEOC clarified that even if a fully vaccinated employee requests a reasonable accommodation on the ground they face a heightened risk of severe illness from a COVID infection, the employer should engage in an interactive process to determine if there is a disability-related need for a reasonable accommodation. For example, the employer should engage in the interactive process if the individual claims that the vaccine does not offer the same measure of protection as it does to others because the individual is immunocompromised. 
• Teleworking is just one of many examples of a reasonable accommodation for an unvaccinated employee. The EEOC emphasized that for employees who cannot be vaccinated based on a sincerely held religious belief or disability, teleworking is not the only reasonable accommodation. Rather, reasonable accommodations may also include working a modified shift, maintaining social distance, wearing a face mask in the office, getting periodically tested for COVID, and accepting a potential reassignment.  
• It’s OK to ask about vaccinations and to request vaccination documentation. Much to employers’ relief, the EEOC confirmed that employers do not violate the EEO laws by asking for proof of vaccination. The updated guidance states that requests for proof of vaccination are not “disability-related inquiries” for purposes of the ADA. (An employee could have many reasons unrelated to a disability for not having vaccination documentation.) Still, the documentation or fact of a worker’s vaccination constitutes confidential medical information under the ADA: that information or documentation should be kept confidential and apart from the employee’s personnel records. 
• It’s OK to offer incentives for voluntary vaccinations. The EEOC confirmed that employers may offer incentives to employees for agreeing to be vaccinated by the employer, or for providing documentation of their – and their family members’ – vaccination status. However, the EEOC warned that vaccine incentives should not be so substantial as to be coercive.  
• The ADA may restrict pre-vaccination questions. Those of us who have been vaccinated know that getting the shot comes with a few health-related questions. In light of this, the EEOC emphasized that, under the ADA, employers shall only require workers to answer pre-vaccination questions that are “job related and consistent with business necessity.” This requirement does not, however, apply where employers offer to vaccinate their employees on a voluntary basis, because in voluntary situations employees are answering pre-vaccination questions of their own volition. Again, be sure to keep any employee medical information confidential and separate from the employee’s personnel files. (Note: The EEOC confirmed that the Genetic Information Nondiscrimination Act (GINA) does not currently restrict or prohibit the pre-vaccination screening questions for the Pfizer, Moderna, and Johnson & Johnson vaccines, since those questions do not seek family medical history or other genetic information.)
• Don’t offer incentives for vaccination of employee family members. While confirming that employers may provide vaccine opportunities and vaccine-related information to employees and their family members, the EEOC said employers should not offer incentives to employees in return for having the employer vaccinate a family member. That’s because employers (or their agents) who gather health information about employee family members violate the Genetic Information Nondiscrimination Act (GINA) – which restricts employers from requesting, requiring, purchasing, or disclosing an employee’s genetic information. Employers who offer voluntary vaccinations to their workers’ families must additionally refrain from penalizing employees if their family member(s) decline the offer. Any information obtained from family member(s) during the vaccination process must be kept confidential and must not affect employment decisions regarding the employee. 

The EEOC’s advice to employers will no doubt continue to evolve as vaccinations become more common and, potentially, as the need for vaccinations decreases. If you have any questions about the new EEOC guidance, or about other employment compliance matters, please contact Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.