EEOC Issues COVID-19 Vaccine Guidance for Employers
The U.S. Equal Employment Opportunity Commission (EEOC) has issued new COVID-19 vaccine guidance for employers. The new guidance addresses topics the EEOC either left unclear or did not expressly resolve in earlier publications. SESCO Management, a full-service human resource and employee relations consulting firm, prepared the following outline of the guidance.
- Information about an employee’s vaccination status is considered “confidential medical information” under the Americans with Disabilities Act (ADA).
- Like all medical information, information about an employee’s vaccination status must be kept confidential and stored separately from the employee’s personnel file. Unfortunately, with this general rule in mind, the EEOC has not yet offered guidance for employers on how to easily identify the vaccination status of employees at the workplace to enforce ongoing mask mandates for non-vaccinated workers (e.g., via a badge or other outward identifier).
- Employers may ask employees whether they obtained the vaccine from a third party in the community (pharmacy, personal doctor, etc.), and this question is not a “disability-related inquiry.”
- Employers may ask employees to provide documentation or other confirmation of the vaccination from such sources without the request being a “disability-related inquiry.”
Vaccinating Subsets of Employees
- Employers may offer vaccinations to certain groups of employees and not to others (e.g., assembly versus office workers), so long as the employer does not discriminate in the offering based on a protected class.
- Employers may offer incentives to employees who voluntarily receive the vaccine from a third-party vaccine provider (health department, pharmacy, personal medical provider, etc.).
- Employers may offer incentives to employees to voluntarily provide documentation that they received the vaccine from a third-party vaccine provider.
- Employers may offer incentives to employees who voluntarily receive a vaccination administered by the employer or its agent, so long as the incentive is not “so substantial as to be coercive.” One gap in the guidance provided by the EEOC is any further discussion of what constitutes a "coercive" incentive. What is so substantial as to be coercive and thus no longer voluntary under the ADA?
- Hopefully, the EEOC will further clarify this question but an incentive under $500 would likely be permissible. This was a central issue in the EEOC’s prior efforts to delineate regulations covering permissible incentives related to employer-sponsored wellness plans under the ADA. Although the EEOC had released new Trump-era wellness regulations in January 2021, they had not yet been published in the Federal Register when President Biden took office, and so they were withdrawn.
- Employers may not offer an incentive to an employee in return for the employee’s family member getting vaccinated by the employer or its agent.
- Employers may offer to vaccinate family members without offering the employee an incentive. However, employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to do so. Employers must also ensure all medical information obtained from family members during the screening process is used only for the purpose of providing the vaccination, is kept confidential and is not provided to any managers, supervisors or others who make employment decisions for the employees.
Finally, as outlined by Bloomberg Government on Wednesday, August 24th, the upgraded U.S. Food and Drug Administration status announced Monday will make workplace mandates in the private sector tougher to challenge in court and less objectionable to some employees who have been reluctant to take the jab. Per Bloomberg, “perhaps the strongest out of the weak legal arguments against workplace inoculation requirements in the private sector is that the shot cannot be mandatory because the vaccines are only approved for emergency use. Full authorization of the Pfizer/BioNTech vaccine appears to fatally undermine that argument.”
Finally, please learn more on the above by visiting ASA’s COVID-19 Webpage.