Since the start of the pandemic, the EEOC has periodically updated its informal guidance to address emerging topics related to COVID-19, include regarding vaccination, which is top of mind for many U.S. employers. This week, the EEOC updated its informal guidance to address questions regarding COVID-19 vaccination and vaccination incentive programs. Takeaways from the updates include the following:
- An employer may require all employees physically entering the workplace to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII (related to religion and pregnancy) and the Americans with Disabilities Act (ADA). The agency warns against policies that might have a disproportionate impact on certain groups of employees, therefore consistent application of mandatory vaccination policies is essential. Specifically with respect to pregnant employees, although the EEOC echoes guidance from the U.S. Centers for Disease Control and Prevention (CDC) encouraging persons who are pregnant or breastfeeding to obtain the COVID-19 vaccine, if an employee seeks an exemption from a vaccination requirement due to pregnancy, employers must ensure that the pregnant employee is not discriminated against compared to other employees similar in their ability or inability to work. Accordingly, the pregnant employee may be entitled to accommodations such as job modification, telework, changes to work schedules or assignment, or leave, to the extent such modifications are provided for other similarly-situated employees whose request for exceptions to vaccination policies are granted.
- An employer may provide employees information about COVID-19 vaccination, raise awareness about the benefits of vaccination, work with medical providers to make vaccination available for unvaccinated workers in the workplace, provide information on low-cost or no-cost transportation resources to vaccination sites, and offer paid time off for vaccination, all without violating the ADA or Genetic Information Non-Discrimination Act (GINA). The EEOC balances this message with a reminder to employers to provide contact information of a management representative to employees who may need to request a reasonable accommodation for religion, disability, or pregnancy.
- Requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA. Although employers may require employees to provide confirmation of vaccination as part of a voluntary or mandatory vaccination program, like all medical information, documentation of vaccination must be kept confidential and maintained separate from employees' personnel files, as required by the ADA. If the employer requires employees to provide documentation of a vaccination received from a health care provider that is not affiliated with their employer, GINA is not implicated.
- Employers may offer incentives to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with the employer, such as the employee's own physician, pharmacy, or a public health department. As long as the health care provider is independent of the employer, there is no limit or cap on the incentive an employer may offer. However, if the employer itself is administering the vaccine, the value of the incentive may not be so substantial as to be coercive because of the genetic and/or disability-related information that the employee may have to provide the employer-as-vaccine-administrator.
These updates are in keeping with the EEOC's steady position supporting vaccination, subject to reasonable accommodation obligations, and set the stage for anticipated mandatory vaccination programs consistent with President Biden's Path Out of the Pandemic plan. With the OSHA Emergency Temporary Standard (expected to require COVID-19 vaccination of employees working for U.S. employers with 100 or more employees) under review by the White House and expected to be released at any time, we will continue to provide updates on challenges related to mandatory vaccination programs.
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