On Friday, May 28, the EEOC issued an updated version of its ongoing Q&A about COVID and its interaction with the ADA, the Rehabilitation Act and other laws administered by the agency. This is a long awaited instruction on various issues including the use of incentives to encourage employees to vaccinate.
Here is a summary of many of the important points:
- Employers may require their employees entering the workplace to be vaccinated (it does not address remote workers).
- Employers may instead simply encourage employees to be vaccinated. This can include assisting with transportation to and from vaccine sites and providing for purposes of the vaccination. In fact, the tax credit under the extended FFCRA may apply to such leave.
- A requirement to be vaccinated is subject to the possible need to provide reasonable accommodations for employees who cannot/will not receive the vaccine because of disability or religion, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. Therefore, the EEOC recommends that any notice to employees of a required vaccination also confirm that requests for reasonable accommodations will be considered on an individual basis. Potential accommodations can include continued masking, social distancing, modifications to shift times or job reassignment, and teleworking, to name a few. An employee who is not vaccinated because of pregnancy may be entitled to modifications in the same way as the accommodations made based on disability or religion.
- The employee has the responsibility to request the accommodation. However, as with other accommodation requests, the request does not have to use particular language and so managers/supervisors must be trained to recognize such request. Once the request is made, an employer must engage in the interactive process. As with any other condition, an employer may not reveal information to other employees (other than managers/supervisors who need to know) that an employee is receiving a reasonable accommodation.
- If an employee cannot be vaccinated due to a disability, the employer cannot require compliance unless it can demonstrate that the employee would pose a “direct threat” to the health or safety of the employee or others in the workplace. This will require an individualized assessment of the employee’s ability to safely perform the essential functions of the job; it is an assessment not to be taken lightly.
- The fact that an employee is vaccinated does not necessarily mean they are no longer entitled to reasonable accommodation. Again, employers have to engage in the interactive discussion to determine if such further accommodations are required.
- Employers may require proof of vaccination; doing so is not a medical inquiry prohibited by the ADA. Still, the information is confidential medical information that must be treated confidentially. Screening questions asked by an independent vaccine provider do not violate the ADA.
- If an employer administers its own vaccinations or has a third party to do so on its behalf, there are cautions in terms of the required screening questions because those can be considered medical inquiries governed by the ADA. One exception is that if the vaccine is truly voluntary, then the screening questions may not implicate the ADA since the employee has a choice about whether to answer them and proceed with the vaccination. As with proof of the vaccine, screening question responses must be treated as confidential medical information.
- Employers are permitted to offer vaccinations only to certain groups of employees, as long as there is no discriminatory basis for doing so. The decision should be supported by objective reasons.
- A mandate to have the vaccination could result in a disparate impact on employees based on race, color, sex, religion, or national origin, because some individuals or demographic groups may face greater barriers to getting the vaccine and should not be negatively impacted by a vaccination requirement.
One of the most anticipated issues in the updated Q&A is about incentivizing employees to be vaccinated. The EEOC has said the following:
- If the employer is administering the vaccine program (so that it is asking the screening questions), it may provide only a limited incentive that is not so substantial as to be coercive. This is because vaccinations require employees to answer pre-vaccination disability-related screening questions, so a very large incentive could make employees feel pressured to disclose protected medical information Also, there cannot be any incentive to employees for family members to receive the vaccine through the employer-administered program. This is prohibited by GINA.
- An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community because this is not a disability-related inquiry covered by the ADA.
Employers are reminded by the EEOC that its guidance is only applicable to federal nondiscrimination laws and does not address any issues raised by the Emergency Use Authorization (EUA) status of the vaccine.
We will continue to follow the updates and will certainly be discussing this and other new information at our next Chamber Zoom meeting.