Employment & Labor Law

On May 28, 2021, the US Equal Employment Opportunity Commission (“EEOC”) revised its guidance on COVID-19 in the workplace in an attempt to answer questions from employers about what they can and cannot do regarding vaccinations and incentives under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (“GINA”). The new EEOC guidelines permit employers to mandate COVID-19 vaccinations for employees physically entering the workplace and require proof of vaccinations without violating federal EEO laws, as long as the employer makes reasonable accommodations available to employees with disabilities, pregnant employees, and employees with sincerely held religious beliefs. The guidelines also permit employers to provide unlimited incentives to employees who obtain vaccines from third parties. Employers can provide limited incentives to employees who receive vaccinations through the employer or its agent, as long as the incentives are not “coercive.” While the guidance is helpful, it still leaves certain questions unanswered, particularly related to the amount and type of employer-provided vaccination incentives. The categories of important updates are as follows:

Vaccinations for Employees

The EEOC confirms that it is permissible for employers to require all employees physically entering the workplace to be vaccinated under federal EEO laws, as long as they provide reasonable accommodations to individuals requesting an exemption for disability, pregnancy, or religious reasons. This requirement is the same regardless of the source from which employees obtain the vaccine (i.e., employer or third party). If an employer is notified of a reasonable accommodation request by an employee to remain unvaccinated, it must engage in the interactive process to determine if such an accommodation can be provided. In the COVID-19 context, examples of reasonable accommodations include: wearing a face mask or face shield; social distancing from other employees; allowing the employee to work in a closed-door office or solitary space; allowing the employee to work modified shifts to limit interaction with others; requiring periodic COVID-19 testing; providing the opportunity to telework; or permitting reassignment (as a last resort).

An employer is not required to provide a reasonable accommodation if it would pose an undue hardship on the employer’s business operations, and such an analysis depends on whether the accommodation is for a disability or religious reasons, as the analyses are different under the ADA and Title VII. Undue hardship considerations can include: the number of employees in the workplace who are already partially or fully vaccinated; the extent of the employee’s contact with others in the workplace; and the extent of the employee’s contact with non-employees with unknown vaccination status. If an employee cannot be accommodated, employers should determine if any other rights apply under local or state EEO laws before taking any adverse action against an unvaccinated employee.  Keep in mind that it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee who requests a reasonable accommodation.

Employers should be aware of employee complaints about mandatory vaccinations and consider whether a vaccine requirement is job-related and consistent with business necessity, such as for safety-related reasons (i.e., hospital or nursing home). If an employee cannot meet this standard for one of the reasons enumerated above, the employer cannot require vaccine compliance unless the individual poses a “direct threat” to the health or safety of the employee or others in the workplace. Under the ADA, a “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 CFR 1630.2(r). An employer must assess whether there is a direct threat, and if so, whether a reasonable accommodation would reduce or eliminate the threat, absent undue hardship. As a practical matter, employers in low-risk settings, such as office buildings, will likely have difficulty establishing that an unvaccinated employee’s presence in the workplace rises to the level of a direct threat since the threat can most likely be eliminated with mitigation measures.

Employers may also choose to vaccinate employees’ family members. If an employer decides to administer employee and/or family member vaccinations itself or through a vendor and makes vaccinations mandatory, it is important to not ask any pre-screening questions that could implicate the ADA or GINA by obtaining any disability-related or genetic information. The EEOC guidance clarifies that current COVID-19 screening questions to receive Emergency Use Authorization (EUA) from the FDA do not implicate GINA. For guidance on pre-vaccination procedures, employers can review the CDC’s Pre-Vaccination Checklist here. Any information elicited during pre-screening for a mandatory employer-provided vaccine program must be job-related and consistent with business necessity. If the employer vaccination program is voluntary, the employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity, but the employee’s decision to answer the questions must be voluntary. The ADA generally restricts when employers may require medical examinations, but the act of administering the vaccine is not a “medical examination” under the ADA because it does not seek information about the employee’s physical or mental health, so the ADA requirements pertaining to medical examinations do not apply to employer-provided vaccine programs.

Employers are permitted to ask employees whether or not they have received a COVID-19 vaccination but may not ask follow-up questions, such as why they are not vaccinated, which could elicit information violative of federal EEO laws. If employees get vaccinated by a third party (pharmacy, health care provider, public clinic), employers can request proof of vaccinations in the form of a copy of the vaccination card or other documentation. Requesting vaccine documentation is not considered a disability-related inquiry under the ADA or an impermissible inquiry under GINA because the employer is not obtaining information likely to disclose the existence of a disability or genetic information. However, any employee medical information obtained by the employer related to COVID-19 vaccinations is confidential under the ADA, regardless of where the employee gets vaccinated, and must be kept separate from an employee’s personnel file and accessible only to persons on a need-to-know basis. This also means that managers and supervisors should not be told about an employee’s vaccination status.

Vaccination Incentives

Under the ADA and GINA, employers are permitted to offer unlimited incentives to employees who voluntarily provide proof of vaccination by a third party, such as a pharmacy, primary care physician, or public site, for the reasons stated above. However, when employees get vaccinated voluntarily by their employer or its agent, incentives are permissible only if they are not “so substantial as to be coercive.” The guidelines do not define the meaning of “coercive,” nor are any examples of coercive incentives provided. Presumably, the incentive cannot be so large that it renders the employer’s voluntary vaccination program effectively involuntary.  The type and amount of incentives are not defined either, so the guidelines leave it up to each employer to decide. Depending on the type and amount of incentive chosen, it could become problematic for employers if employees complain about being disproportionately impacted or involuntarily excluded in a discriminatory manner. As a result, it may pose less of a risk for employers to allow employees to obtain vaccinations from a third party rather than providing the vaccines itself or through a vendor.

Notably, employers are not permitted to offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent because it would require the employee to ask the family member pre-screening questions that include medical questions about the family member. This would lead to the employer’s receipt of genetic information in the form of family medical history of the employee, which is not permitted under GINA. However, an employee’s family member can be vaccinated by the employer or its agent as long as the employer complies with GINA, keeps the information confidential, obtains prior written consent of the family member, and does not offer any incentive to the employee. Employers cannot make vaccinations of family members mandatory or penalize employees if their family members do not get vaccinated.

If employers want to encourage, but not require, employees to get vaccinated, they can always provide employees and their family members with educational materials about COVID-19 vaccinations to raise awareness, explain the risks and benefits of vaccinations, disclaim any false information being spread by various sources, and address questions and concerns. The CDC has published a “tool kit” for employers to use to educate employees about COVID-19 vaccinations, which can be found here. Employers can also notify employees of new vaccination sites, locations, dates, and times and disseminate information about low-cost and no-cost transportation options to inoculation sites.

Vaccination Pitfalls

If an employer decides to offer vaccinations to its employees, it should be careful to avoid certain pitfalls that could create potential liability. For example, employers should ensure the vaccine requirement does not have a disparate impact on employees based on protected characteristics, such as race, color, religion, sex, age, or national origin under Title VII or the Age Discrimination in Employment Act (“ADEA”). Since there are some demographic groups that face greater barriers to obtaining the vaccine, it is possible that certain employees could be negatively impacted by a vaccine requirement. Employers must also consider the logistics and cost of administering vaccines to employees, providing appropriate training for supervisory personnel on new vaccine programs, and properly handling and storing confidential vaccination information prior to implementation of any vaccine programs.

In conclusion, the new EEOC guidance permits employers to mandate COVID-19 vaccinations for employees physically entering the workplace and require proof of vaccinations without violating federal EEO laws, as long as the employer makes reasonable accommodations available to employees with disabilities, pregnant employees, and employees with sincerely held religious beliefs. The guidelines also permit employers to provide unlimited incentives to employees who obtain vaccines from third parties and limited incentives to employees who obtain vaccinations from the employer, as long as the incentives are not “coercive.” However, in light of the discussion above, it may be prudent and safer for some employers to encourage, but not require, employees to be vaccinated by third parties and offer modest incentives, unless the employer is in an industry where mandatory vaccinations are necessary (hospitals, nursing homes, home health care).

To prevent running afoul of federal and state EEO laws, employers should be cautious about the type and amount of incentives they provide to employees, particularly if the employer or its agent is providing the vaccine. The incentives most companies have been providing thus far are either monetary bonuses in the range of $100-200 and/or paid time off in half or full-day increments to account for the time needed to get both shots and to deal with any symptoms associated therewith. However, if an employer is going to offer monetary incentives, it should also consider any potential wage and hour issues that may arise, particularly related to non-exempt employees. Such monetary incentives could be considered non-discretionary bonuses under the Fair Labor Standards Act (“FLSA”). These bonuses must be included in the employee’s regular rate of pay when calculating overtime, so the regular rate of pay may increase, creating unanticipated payroll and administrative issues. Non-monetary incentives (gift cards, lottery tickets, paid catered lunch) could avoid such wage and hour issues. Finally, employers should make sure that all managers, supervisors, executives, and other administrative personnel are educated on the employer’s policies regarding COVID-19 and vaccinations so they can effectively and uniformly implement and enforce those policies in a non-discriminatory manner. The employment attorneys at Houston Harbaugh are available to guide employers through the uncharted waters of employment issues that continue to arise from COVID-19. Please feel free to reach out to the author of this article, Catherine Loeffler, at loefflercs@hh-law.com, or Craig Brooks at cbrooks@hh-law.com for more information and guidance.