On May 28, the Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance guidance related to Equal Employment Opportunity (EEO) laws implicated by the public health emergency caused by COVID-19 and employers’ response to that emergency.
The updated guidance addresses timely issues related to COVID-19 vaccinations, employee vaccination records, and the provision of incentives to employees to be vaccinated and/or produce their vaccination records.[1] In this special bulletin, we review and summarize several of the important updates to the guidance and provide advice to employers on how to comply with the relevant EEO laws.
Employers May Require Employees to be Vaccinated in Order to Return to Work, But May Need to Accommodate Employees Who Cannot be Vaccinated Due to Qualifying Disabilities and/or Sincerely Held Religious Beliefs
The EEOC provides that under Federal EEO laws[2], employers may require that all employees must be vaccinated for COVID-19 in order to enter the employer’s worksites and facilities.[3] The updated guidance more directly addresses this issue as the EEOC previously provided that under the Americans with Disabilities Act (ADA), employers could establish a safety-related qualification standard in order to protect the workplace from a “direct threat” posed by an unvaccinated employee.[4]
The updated guidance confirms that a safety-related qualification standard may preclude unvaccinated employees from reporting to the employer’s workplace if the threat posed by such employees cannot be reduced or eliminated through the provision of a reasonable accommodation.[5] However, the updated EEOC guidance also provides a list of accommodations that may reduce or eliminate the threat posed by such individuals, including “wear[ing] a face mask, work[ing] at a social distance from coworkers or non-employees, work[ing] a modified shift, get[ting] periodic tests for COVID-19, be[ing] given the opportunity to telework.[6]
Employers that are considering requiring that their employees be vaccinated in order to return to work should be prepared to engage those employees in the interactive process to determine whether they can be reasonably accommodated. Such employers should also begin considering the accommodations that they may be able to reasonably provide to such employees. As a best practice, employers that are going to require employees to be vaccinated in order to return to work should advise their employees that the employer will consider requests for accommodation by employees who cannot be vaccinated due to a health or medical condition that qualify as disabilities[7] or due to a sincerely held religious belief.[8]
Incentivizing Employee Vaccination
The EEOC guidance provides that employers may, under certain circumstances, offer incentives to employees who receive COVID-19 vaccines.[9]
The EEOC clarifies that, where the employer is administering its own vaccination program, the incentive offered should not be so “substantial as to be coercive” and that a “very large incentive could make employees feel pressured to disclose protected medical information [to the employer].”[10] The EEOC provides that this is not an issue if an independent third-party is administering the vaccines because that entity would not disclose to the employer any information about health or medical conditions that the employee provides as part of the pre-vaccination screening.[11]
Employers that are considering offering employees incentives to be vaccinated should be aware of the other legal issues that offering incentives may implicate.[12] Before implementing an incentive program related to the receipt of vaccinations, Liebert Cassidy Whitmore recommends that employers discuss the proposed design of the program and the incentive to be offered with counsel.
Vaccination Records are Confidential Medical Information
The EEOC guidance confirmed that employees’ vaccination records and information concerning vaccination status constitute confidential medical information under the Americans with Disabilities Act (ADA).[13] Therefore, employers that request and receive such records from their employees must maintain them in such a way as to comply confidentiality requirements of the ADA, such as keeping the records in a medical file separate from the employee’s personnel file.
Employers should also note that such records/information constitutes confidential medical information under the State’s Confidentiality of Medical Information Act (CMIA).[14] As a result, employers must maintain such records according to the confidentiality requirements of the CMIA, including that they not use or disclose such information without the employee’s prior written approval[15], but for the limited purposes expressly provided for in the statute.
Incentivizing Employees to Provide Vaccination Records
The EEOC also provides that it is permissible for employers to offer incentives to employees who produce their COVID-19 vaccination records.[16] The EEOC confirms that requesting vaccination records does not constitute a disability-related inquiry, and therefore employers may offer an incentive to encourage the disclosure of that information without implicating any EEO law.[17]
However, as provided above, employers should note the other legal issues involved in incentive and should discuss the design of the incentive program with counsel before implementing the program and providing the incentives to employees.[18]
LCW is closely monitoring legal developments related to the COVID-19 public health emergency, including updates from EEOC and other federal and state authorities. For additional information and the latest updates, visit: https://www.lcwlegal.com/responding-to-COVID-19.
[1] EEOC “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, K.1.-21. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Last updated May 28, 2021.) As with all employment policies, employers that adopt a vaccine requirement should be prepared to respond to allegations that the policy has a disparate impact on (i.e., results in the disproportionate exclusion from the workplace) of certain employees or groups of employees based on their protected classification (e.g., race, color, religion, sex, or national origin (under Title VII of the Civil Rights Act of 1964) or age (under the Age Discrimination in Employment Act) (for employees age 40 and above)). Employers should be mindful that due to the fact that some groups face increased barriers to receiving a COVID-19 vaccination relative to others, employees in such groups may be more likely to be negatively impacted by a vaccination requirement.
[2] The EEOC limited the scope of the guidance to EEO laws under its jurisdiction, and provided the following with respect to its guidance concerning COVID-19 vaccines: “The EEOC has received many inquiries from employers and employees about the type of authorization granted by the U.S. Department of Health and Human Services (HHS) Food and Drug Administration (FDA) for the administration of three COVID-19 vaccines. These three vaccines were granted Emergency Use Authorizations (EUA) by the FDA. It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach. Individuals seeking more information about the legal implications of EUA or the FDA approach to vaccines can visit the FDA’s EUA page. The EEOC’s jurisdiction is limited to the federal EEO laws as noted above.” Id., at K; see also LCW Special Bulletin, “EEOC Updates Guidance Concerning the Permissibility of Requiring COVID-19 Vaccinations”, https://www.lcwlegal.com/news/the-equal-employment-opportunity-commission-eeoc-updates-guidance-concerning-the-permissibility-of-requiring-covid-19-vaccinations/ (Uploaded December 23, 2020.)
[3] Id., at K.1, K.5.
[4] Id., at K.5.
[5] Id., at K.5.
[6] Id., at K.2.
[7] Id., at K.6.
[8] Id., at K.12.
[9] Id., at K.16-21.
[10] Id., at K.17.
[11] Id., at K.17.
[12] See LCW Identifying and Addressing the Legal Issues Implicated by Voluntary Employer-Sponsored COVID-19 Vaccination Programs” (Uploaded March 4, 2021.) For example, see Penal Code § 319, et seq., concerning restrictions on lotteries.
[13] EEOC “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, K.4. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Last updated May 28, 2021.)
[14] See Civil Code section 56.20.
[15] See Civil Code section 56.21.
[16] See EEOC “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, K.9, K.15, K.16, K.18. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Last updated May 28, 2021.)
[17] Id.
[18] See footnote 12.
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.