On Friday, May 28, 2021, just before the holiday weekend, the United States Equal Employment Opportunity Commission (EEOC) released its first technical assistance guidance since December 2020 related to COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Other Equal Employment Opportunity (EEO) Laws. This guidance is in response to inquiries from employers about employee vaccination requirements and incentives to employees for receiving the COVID-19 vaccination. This information is relevant to employers with employees who have physically returned or are physically returning to the workplace.
It is important to note that the Occupational Safety and Health Administration (OSHA) has yet to release its new guidance related to pandemic issues. This matters because the EEOC’s jurisdiction does not extend into areas where many employers are facing claims of retaliation and related litigation the EEOC’s guidance cannot address. Moreover, the trauma of a year under a pandemic is already catalyzing return-to-work stress related incidents, which can play out under multiple legal scenarios, including wage and hour claims and union organizing.
EEOC Guidance to Employers
The updated EEOC guidance confirms that the federal EEO laws permit an employer to require all employees physically entering the workplace be vaccinated for COVID-19, but again reiterates this is subject to certain exceptions for employees with disabilities, pregnant employees, and employees with sincerely held religious beliefs, practices, or observances. The guidance also cautions against policies that may have a disparate impact upon certain employer groups. While the updated guidance provides new insight about the application of these exceptions and considerations, these situations each still require an individualized assessment and form the basis for many employer voluntary vaccination policies and practices.
The EEOC guidance also provides information about pre-screening questions for employer-provided vaccinations, what employers may ask employees about vaccinations, whether and when employers may require documentation or confirmation of vaccinations, and confidentiality requirements for vaccination information. The guidance states that vaccination records are confidential medical records that should be kept separate from the personnel file, but it still does not address employer policies requiring employees to visually self-designate if they are fully vaccinated. Thus, employers who elect to adopt policies requiring employees to visually indicate to others if they are fully vaccinated may run afoul of the ADA and other EEO laws.
Next, the updated guidance provides new information related to employer incentives provided to employees who receive the COVID-19 vaccination. The guidance explicitly provides that employers may offer an incentive to employees who voluntarily provide documentation or other confirmation that they or a family member received a vaccination from a third party, and that employers may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent if it is “not so substantial as to be coercive.” However, the updated guidance did not address how incentive policies apply to employees with disabilities, pregnant employees, or employees with sincerely held religious beliefs, practices, or observances. Thus, employers who intend to provide incentives to employees who receive the COVID-19 vaccine (both rewards and penalties) should consult with legal counsel to fully analyze the advantages and risks of such a program.
Finally, in its preamble related to vaccinations, the EEOC recognizes the May 13, 2021 updated CDC guidance for fully vaccinated individuals, exempting them from masking requirements “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance,” then states that the EEOC is “considering the impact of this CDC guidance on EEOC’s COVID-19 technical assistance provided to date.” Thus, while the updated guidance last week does provide some discussion of masking requirements in conjunction with vaccination policies and the ADA analysis, we anticipate the EEOC technical guidance may be further updated in the future with respect specifically to employer masking requirements for employees.
What It All Means
It is important to note that the EEOC’s jurisdiction is federal EEO laws, and state and local laws may diverge significantly — from jurisdictions experimenting with so-called vaccine passports, to states seeking to prohibit them. California, for example, is considering voluntary mask mandates as between those who are vaccinated, and those who are not. Moreover, it is also important to note that the EEOC guidance relates to the worker-employer relationship, but businesses may also have requirements that extend beyond this relationship and are impacted by requirements applicable to members of the public and customers. These distinctions will necessary vary by industry, and employers should consult legal counsel with experience in their industry when designing any implementation strategy.
As many employers have now had at least some employees physically returning to the workplace, this guidance does not provide a drastic shift for many employer policies and practices. Nor does it specifically provide any immunity against claims. However, it is intended to reassure employers and help guide them as they determine whether and how to mandate or encourage employee vaccinations. Employers should also be aware and cognizant of state and local laws, OSHA guidance, and industry-specific requirements that may affect employee vaccination matters, and should consult with their Practus attorney for specific guidance and support.