Key Takeaways from the EEOC’s Updated Guidance Regarding COVID-19 Vaccinations, Incentives

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) provided its first comprehensive update of its guidance since December 2020 (before COVID-19 vaccinations were broadly available) regarding COVID-19.  The update covers issues relating to mandatory vaccination policies, employer-provided vaccine incentives, confidentiality, and accommodating workers who may be unable or unwilling to obtain a vaccination for certain reasons.

Notably, the EEOC indicates that this guidance was prepared prior to the Centers for Disease Control and Prevention’s (CDC) guidance regarding fully vaccinated individuals (issued on May 13, 2021), which provides, among other things, that fully vaccinated individuals need not wear masks or socially distance.  The EEOC states that it is continuing to consider the CDC’s guidance, but whether and when the EEOC will provide its views or further guidance with respect to the CDC’s update is not yet clear.

Key takeaways from the EEOC’s May 28 update include:

Mandatory Vaccination.  In perhaps the most significant update since vaccinations have become generally accessible to the public, the EEOC’s revised guidance makes clear that, subject to certain limitations (most notably the provision of “reasonable accommodation” to some employees where that does not present an undue hardship to the employer, discussed below), an employer can lawfully require that its employees obtain a COVID-19 vaccination as a condition of returning to the workplace under the Americans with Disabilities Act (ADA) and the Genetic Information Non-discrimination Act (GINA).  An employer doing so must make certain to administer such a policy in a non-discriminatory manner and be mindful of the potentially disparate impact of such a policy on certain protected categories of workers.  And, as always, while the EEOC’s guidance reflects the agency’s interpretation of the federal civil rights laws it enforces, such a policy may be limited by applicable state or local laws or ordinances, and should be vetted with counsel. 

Still, the EEOC’s May 28 guidance is the most direct pronouncement yet that under federal equal employment opportunity law, employers may choose to require that employees who are physically present in the workplace be vaccinated for COVID-19, subject to the obligation to reasonably accommodate employees who have not been vaccinated because of a disability or sincerely held religious belief, practice, or observance.  Amplifying this point, the EEOC also published on May 28, 2021, an employee-facing resource for job applicants and employees that explains the EEOC’s view on how federal employment discrimination laws protect workers during the pandemic, which likewise makes clear that employees “might be able to get an exception to [their] employer’s vaccination requirement,” but only if they “did not take a COVID-19 vaccine because of [a] disability or religious belief, practice, or observance.”

Reasonable Accommodation.  The updated guidance from the EEOC maintains the agency’s position that an employer requiring its employees to obtain a COVID-19 vaccination must reasonably accommodate employees who are unable or unwilling to get vaccinated because of a disability or sincerely held religious belief, practice, or observance.

Disability.  The EEOC’s guidance makes clear that where an employer requires a COVID-19 vaccination for all employees entering the workplace, it must engage in an interactive process and consider reasonable accommodation for an employee who is unable to be vaccinated because of a disability protected under the ADA.  An employee who has not been vaccinated for COVID-19 because of a disability may only be excluded from the workplace if they pose a “direct threat” under the ADA.  As the EEOC explains, this must be an “individualized assessment of the employee’s present ability to safely perform the essential functions of the job,” assessed with reference to “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.”  The EEOC further notes that the determination that a particular employee poses a direct threat “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” and that such a medical judgment may be based on, for example, the level of community spread at the time of the assessment. 

The EEOC also notes that statements from the CDC “provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.”  Finally, the EEOC directs that the assessment of a “direct threat” should take account of “the type of work environment, such as whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.”  Employers that choose to mandate the COVID-19 vaccine should analyze closely each of these considerations in determining whether and how to accommodate an employee who has not been vaccinated for COVID-19 because of a disability.

Even where the presence of a non-vaccinated employee would pose a direct threat, the updated guidance notes that under the ADA an employer must make efforts to accommodate a worker who cannot obtain a vaccination due to a disability, where such an accommodation does not present an undue hardship.  Examples of such accommodations provided by the EEOC include requiring an employee to continue to wear a mask and social distance while in the workplace, limiting contact with other employees and non-employees, providing a modified shift, permitting continued telework if feasible, conducting periodic COVID-19 testing, or reassigning the employee to a vacant position in a different workplace.

Religion.  Consistent with its long-standing position, the EEOC’s updated guidance makes clear the agency’s view that in most instances, an employer should presume that a request for an accommodation based on religion is based on a sincerely held religious belief, practice, or observance.  The agency does make clear, however, that if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.  Given the narrow interpretation that the EEOC would likely give to such an exception, employers presented with this issue are strongly advised to consult with counsel.  Employers are required to engage in a similar “interactive process” with employees who have sincere religious objections to vaccination, and provide an accommodation that allows the employee to return to work where doing so does not present an undue hardship (the standard for showing such hardship under Title VII, which governs religious accommodation, is a lower standard than that under the ADA).

Vaccination Incentives.  The updated guidance makes clear that where an employer is providing an incentive to its employees or employees’ family members to obtain COVID-19 vaccination outside the workplace (i.e., from a third party unrelated to the employer), the ADA and GINA are generally not implicated and the employer may lawfully to do so under these statutes (different rules that may limit incentives apply where the employer itself is administering the vaccination, or engaging an agent to do so).  One important question the EEOC’s guidance does not answer is whether and to what extent an employer must provide a vaccine incentive to employees who are unable to obtain a vaccination due to a medical or religious-based reason.  Given the lack of clarity in the EEOC’s guidance (not to mention the state and local wage and hour laws which certain incentives may implicate), employers that are utilizing incentive programs will want to ensure that they do so in consultation with counsel.

Confidentiality.  Since December 2020, the EEOC has made clear its position that an employer’s request for self-disclosure of vaccination status, or for documentation or other confirmation that an employee has received a vaccination from a third party (such as a pharmacy or personal physician), is not a medical examination or a disability-related inquiry. As a result, the agency has acknowledged that employers may lawfully request this information without implicating the ADA or GINA.

Despite its conclusion that a request for proof of vaccination is not a disability-related inquiry or medical examination, the agency takes the position in its updated guidance that the ADA requires employers to treat employees’ documentation or other confirmation of vaccination as confidential medical information.  Several federal circuit courts of appeal have rejected this reading of the ADA in analogous circumstances, holding that the ADA’s confidentiality requirements do not apply to employees’ medical information received outside the context of a permitted medical examination or disability-related inquiry.  The EEOC’s disregard of this precedent is especially important for employers under pressure to disclose employees’ vaccination status and/or proof of vaccination to customers, clients, or other third parties.  Even though these employers are not required under the ADA to obtain employees’ consent to disclosure, they will need to consider the risk of having to defend the propriety of disclosing employees’ vaccine-related information without consent against challenges based on the EEOC’s unsupported, updated guidance.  

While the ADA does not require employers to treat vaccination status, proof of vaccination or other confirmation as a confidential medical record, employers still will need to address state law requirements. A significant minority of states have enacted laws requiring reasonable safeguards for “personal information,” which term often is defined to include health information.  In addition, a significant minority of states mandate breach notification when health information is compromised. Consequently, employers should consider restricting access to vaccine-related information and applying safeguards similar to those applied to other types of sensitive personal information. Employers in the few states that require employees’ consent for employers’ disclosure of health information will also need to obtain appropriate consent before disclosing vaccine-related information to third parties.

Finally, employers that are administering the vaccine to employees, or contracting with an agent to do so, should be aware that certain health-related questions commonly asked before administering the vaccine likely do implicate the ADA.  Consequently, the responses to these questions would likely be treated as confidential medical information under the ADA.  These employers should consult with counsel as to their obligations under that law. 

Accommodating Fully Vaccinated Employees.  The updated guidance also provides information on a new potential category of accommodation requests related to COVID-19:  where an employee who is fully vaccinated for COVID-19 requests an accommodation based on a continuing concern for heightened risk of severe illness from a COVID-19 infection.  The EEOC makes clear that this type of accommodation request should follow the typical interactive process under the ADA, where an employee makes a request for an accommodation based on a disability and the employer then determines whether it can reasonably accommodate the request.  As part of this interactive process, the employer should seek information from the employee and/or the employee’s health care provider explaining why an accommodation is needed.  The EEOC explains, as an example, that immunocompromised employees may be at continued heightened risk for a severe infection from COVID-19 despite being vaccinated, and may continue to require accommodation.  Thus, employers should not assume that an employee does not require an accommodation relating to COVID-19 simply because the employee is fully vaccinated.

No Reference to Emergency Use Authorization (EUA). While some employees and/or organizations have questioned whether mandatory vaccinations can be permitted absent final approval of the vaccine from the U.S. Food and Drug Administration (FDA), the EEOC did not address the issue and/or raise any concern in its guidance regarding mandatory vaccinations while the COVID-19 vaccinations are available based on the EUA.  Indeed, the agency expressly noted that it was beyond the agency’s jurisdiction to discuss the legal implications of EUA or the FDA’s approach.

We expect that EEOC will continue to update its guidance relating to COVID-19, vaccinations, and return-to-work policies, and will keep readers apprised of relevant developments. 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.