On May 28, 2021 the EEOC issued new guidance for workplace vaccinations. Despite widespread access to COVID-19 vaccines, the seven-day average for COVID-19 vaccinations has dropped from a high of almost 3.4 million to about 1 million as of June 7. The dropping rates of vaccination have placed in serious jeopardy the Biden administration’s goal of 70% of adults having had at least one vaccination dose by July 4. Today, only 42% of all U.S. citizens and 53% of adults are fully vaccinated. At current levels, the United States will likely not see vaccination rates as high as 70% until at least early October and that assumes current vaccination rates remain stable. In response, many U.S. employers are trying to find ways to increase the rate of vaccination within their workforce in order to decrease the potential risks and costs associated with COVID-19. The question that most employers have been asking is, “how far can I go to encourage or require employees to be vaccinated?” Below are three important takeaways from the new guidance.
1. EEO Laws Do NOT Prohibit Employers From Encouraging or Requiring Employee Vaccination.
This is an important restatement of the EEOC’s position regarding workplace vaccinations and allows employers to establish policies and procedures aimed at maximizing employee vaccination rates. The new guidelines allow employers to encourage employee vaccination by raising awareness about the benefits of vaccination and addressing many of the common questions and concerns being raised about vaccination. To ensure that any “encouragement” remains lawful, employers should rely on resources available through state and local health departments or the CDC.
In addition, the new guidelines make clear that employers may require employees to be vaccinated. Employers who require employee vaccination as a condition of returning to the workplace must be on the lookout for issues of religious or disability-related accommodations. Employees are not required to refer to the EEOC or use the term “accommodation” in order to trigger an employer’s obligation to consider possible accommodations. Instead, an employee may simply state something as simple as, “I am at risk for complications if I am vaccinated,” or “I have a condition that puts me at risk if I am vaccinated.” When an employer receives information like this, the employer likely needs to consider whether it can offer a reasonable accommodation. As examples, accommodations may include (a) mandating a face covering for the unvaccinated employee, (b) requiring the employee to maintain social distancing, (c) requiring that the employee receive regular COVID-19 testing, or (d) providing altered or remote work schedules. Similar accommodations would need to be offered to employees who are not vaccinated due to pregnancy. An accommodation may not be available – and therefore need not be offered – if the non-vaccinated employee represents a “direct threat” in the workplace. This determination must be carefully considered and depends on an analysis of the extent and duration of the possible harm. Importantly, the EEOC guidelines specifically reference the number of vaccinated co-workers as one of the considerations necessary for the direct threat analysis. This may suggest a belief within the EEOC that a finding of direct threat will be increasingly difficult to justify as more and more employees in a particular workplace become vaccinated.
2. Employers Can Require Proof of Vaccination.
EEO laws do NOT prevent employers from requiring proof of vaccination, either in the form of a vaccination card or otherwise. However, once received, this information must be kept confidential and stored separately from the employee’s personnel file like other health-related records.
3. Employers May Offer Incentives for Employee Vaccination.
Employers can encourage and even mandate employee vaccinations, so offering employee incentives is no problem, right? Not so fast. Employers may offer incentives to employees who provide proof of vaccination by third parties (not the employer or its agents), but the EEOC warns that employers who administer their own vaccinations or hire an agent to administer workplace vaccinations on the employer‘s behalf may run afoul of the law if they offer “substantial” incentives. In other words, employers can encourage and even require employees to get vaccinated, but if the employer is generous enough to offer its employees a vaccination at work and reward the employee for accepting this offer, the employer could be in violation of the law. The reason for this seemingly counterintuitive guideline has to do with the screening questions that must be asked prior to administering the COVID-19 vaccine– questions, for example, about whether you are currently suffering any COVID-19 symptoms or whether you have had an allergic reaction to prior vaccinations. The answers to these types of questions involve the disclosure of “protected health information.” Such information may be provided to employers and their agents, but only if it is provided voluntarily by employees. The new guidelines provide that an incentive may prove so “substantial” that an employee would feel coerced to provide protected health information that would otherwise be provided voluntarily. To avoid this dilemma of no good deed going unpunished, employers can simply require that vaccinations be obtained through local health departments or other third parties.
While the new guidelines offer some clarity on employee vaccination and return to work issues, they also reinforce the importance of carefully considering how vaccinations are administered and whether and to what extent reasonable accommodations should be made for employees who cannot (or refuse to) comply with vaccination mandates. Employers should carefully consider the risks associated with employee vaccination policies and the response to employees who refuse to comply. While there appears to be a light at the end of the COVID-19 tunnel, the battles over return to work are likely just beginning.
D. Zachary Wiseman is an experienced labor and employment attorney and is monitoring related legal updates for the COVID-19 pandemic. His practice includes labor relations, employment litigation, representation of clients before administrative agencies and commercial litigation. He assists both private and public employers as well as Service Contract Act employers with a wide range of labor and employment issues.