EEOC Issues Updated Guidance on COVID Vaccination Policies

As employers continue to adapt in the wake of evolving federal, state, and local guidance, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidance regarding workplace vaccination policies.

The EEOC’s updated guidance makes it abundantly clear that employers may lawfully require employees to obtain a COVID-19 vaccination as a condition to physically returning to the workplace, provided that they make reasonable accommodations for employees who are unable or unwilling to obtain a COVID-19 vaccination for sincerely held religious objections or disability-related reasons. The EEOC provides several examples of reasonable accommodations that may be offered to such employees, including face masks, social distancing, modified shift schedules, telework and reassignment. Notwithstanding, employers should be careful not to ask follow-up questions if an employee does not provide proof of vaccination because such inquiries could run afoul of the ADA’s prohibitions against medical inquiries unless the employer can show such questions are job-related and consistent with business necessity.

The EEOC’s updated guidance also clarifies that employers may lawfully offer incentives to employees who voluntarily provide documentation that they and members of their family have received a COVID-19 vaccination. If the vaccination at issue is administered by the employer or its agent, however, the incentive offered must be limited and not “so substantial as to be coercive.” In any event, the employer may not offer any incentives in exchange for an employee’s family member being vaccinated by the employer or its agent. If, however, the vaccination is administered by a third-party provider, such as the employee’s personal physician or a pharmacist, the employer is not limited on the incentive that it may offer to employees for providing proof of receipt of a COVID-19 vaccination by employees and/or their family members.

Consistent with its December 2020 guidance, the updated EEOC guidance continues to provide that an employer’s request for proof that an employee has received a COVID-19 vaccination is not a disability-related inquiry under the ADA. However, the EEOC clarifies that the documentation or other confirmation of vaccination provided by the employee is medical information which employers must keep confidential.

Employers are required to explore and consider reasonable accommodations requested by fully vaccinated employees who request accommodations for underlying disabilities or conditions that may subject them to a heightened risk of severe illness from a COVID-19 infection. In addition, employees who seek exemptions from vaccination requirements due to pregnancy may be entitled to telework and changes in work schedules or assignments to the extent such modifications are provided to other employees who have a similar inability to work.

Notably, the updated EEOC guidance scales back any discussion of the emergency use authorization (“EUA”) of the COVID-19 vaccine. In its December 2020 guidance, the EEOC directed employers to learn more about the EUA of COVID-19 vaccines and highlighted an FDA regulation that ensured recipients of the vaccine the option to accept or refuse an EUA vaccine. In its updated guidance, the EEOC’s only reference to EUA is in the context of explaining that the prohibitions against requesting or requiring genetic information of employees under GINA are not implicated when employers require employees to get a COVID-19 vaccination (irrespective of who administers it) because the pre-vaccination screening questions for the three currently available EUA COVID-19 vaccines do not include questions about genetic information.

The EEOC specifically notes that its updated guidance does not address the CDC’s new guidance issued on May 13, 2021 regarding fully vaccinated individuals. Thus, the EEOC will likely issue additional guidance in the months ahead.

Navigating the myriad legal issues attendant to mandating or encouraging COVID-19 vaccinations in the workplace is difficult even for the most sophisticated employers, particularly given the evolving agency guidance. If you have any questions about requiring or encouraging COVID-19 vaccinations, please reach out to one of the authors or another member of the Lewis Rice Labor and Employment Group.