The Equal Employment Opportunity Commission (EEOC) has updated its webpage, “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated FAQs relate primarily to information about vaccinations. Employers are encouraged to review the questions and answers on “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” and to update their policies and train staff accordingly. Employers should also note that some state or local jurisdictions maybe impose additional restrictions on employer vaccine mandates.
Mandatory vaccines: can employers require employees at a physical workplace to be vaccinated?
Yes. Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. Moreover, under the ADA, an employer may require all employees to meet a qualification or safety-related standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.
Title VII, the ADA, and EEO considerations require employees to provide reasonable accommodation (via a flexible, interactive process) for employees who are unable or unwilling to obtain the vaccine due to a disability (including pregnancy-related conditions) or due to religious objections. Employers should train managers and supervisors to recognize an accommodation request from an employee. An employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation an individualized basis.
Reasonable accommodations may include having the unvaccinated employee (1) wear a face mask, (2) maintain a social distance from other workers and customers, (3) telework, or even (4) get periodically tested for COVID-19. Additional resources regarding accommodations can be found at the Job Accommodation Network (JAN) website, at https://askjan.org/topics/COVID-19.cfm. Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources.
Employers cannot apply vaccination requirements in a way has a disparate impact on employees based on a Title VII protected class such as disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Voluntary vaccines: can employers encourage and incentivize employees to be vaccinated?
Maybe. Employers can encourage employees and their family members to be vaccinated, but must take care to not violate the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or other EEO laws. Employers can provide information about the COVID-19 vaccines and the benefits of vaccination, and address common questions and concerns.
Employers may offer incentives to employees who voluntarily provide confirmation that they have received the vaccine. Employers who provide voluntary vaccinations, either themselves or through a designee, can provide incentives to employees who voluntarily receive the vaccine, so long as the incentive is, as per the EEOC, one that is “not so substantial as to be coercive.” If the employer is not mandating or providing the vaccine, the employer can provide more than de minimis incentives. Incentives that can be offered to individuals who voluntarily provide proof of vaccination from an independent third party can be more generous.
Employers can make the vaccine available to family members of employees. However, to prevent violations of the Genetic Information Nondiscrimination Act (GINA), employers should not provide incentives to encourage family members to obtain the vaccine, as this would constitute collection of family medical history.
How must employers safeguard an employee’s vaccination information?
Employers can require employees to bring in documentation or other confirmation of vaccination. However, the ADA requires employers to maintain employee medical information confidential and separate from the employee’s personnel files. This includes documentation regarding an employee’s COVID-19 vaccination status.
Note on HIPAA implications: HIPAA privacy requirements apply to covered entities. Covered entities include health plans, healthcare providers, and healthcare clearing houses. Employers (in their capacities as employers) and employees are not considered covered entities, and therefore HIPAA is not an issue. However, HIPAA must be considered if an individual’s vaccination status is requested directly from the individual’s health plan or care provider. In such cases, the individual’s health information can only be disclosed with authorization from the insured/patient.