This is an update to Holland & Knight's previous blog, "Employers May Encourage Employees to Receive COVID-19 Vaccine, But Requiring it Raises Issues," April 26, 2021.
The U.S. Equal Employment Opportunity Commission (EEOC) recently released new guidance on mandating and incentivizing the COVID-19 vaccination in the workplace. The update, released on May 28, 2021, is the EEOC's first on the issue of the COVID-19 vaccination since it released its initial guidance on this topic in December 2020.
The new guidance clarifies and expands on the EEOC's previous position that private employers can mandate COVID-19 vaccination of employees, as long as they do so in compliance with the American with Disabilities Act (ADA), Title II of the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act. Of note, the new guidance notes that mandating vaccination for COVID-19 does not necessarily implicate Title II of GINA, even if the employer or its agent is the party administering the vaccinations, as long as pre-vaccination screening questions are limited to those on the CDC's Pre-Vaccination Checklist. It also highlights the fact that private employers mandating the COVID-19 vaccination may need to "respond to allegations that the requirement has a disparate impact on - or disproportionately excludes - employees based on their race, color, religion, sex or national origin under Title VII (or are age 40 years or older under the Age Discrimination in Employment Act (ADEA)." Finally, the EEOC's new guidance provides examples of reasonable accommodations that employers mandating vaccination may offer employees who cannot be vaccinated against COVID-19 due to disability, religious beliefs or pregnancy. Such reasonable accommodations include requiring the unvaccinated employee to wear a face mask, work a modified shift, be periodically tested for COVID-19, telework or accept a reassignment.
The EEOC's update also provides new guidance on whether and how employers can encourage their employees to receive the COVID-19 vaccine. According to the EEOC, requesting that employees voluntarily provide documentation showing that they have been vaccinated is not a disability inquiry under the ADA, so employers who wish to offer incentives to employees who have been vaccinated by a third party can freely do so. Employers can also offer incentives to employees who voluntarily receive a COVID-19 vaccination administered by the employer or an agent of the employer. However, since substantial incentives may pressure employees to reveal protected medical information in pre-vaccination screening questionnaires, employers can only offer incentives that are "not so substantial as to be coercive." The EEOC did not expressly identify what kinds of incentives will be deemed as coercive and that issue remains unclear.
The new EEOC guidance comes as many employers are choosing to incentivize, rather than mandate, the COVID-19 vaccination. A recent Fisher Phillips survey of more than 700 employers released on May 25, 2021, reports that 83 percent of those surveyed have chosen to forgo mandating vaccination for employees.
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