With Workers Coming Back to Buildings, EEOC Refines Vaccine Guidance

Frank Ferreri

Washington, DC (WorkersCompensation.com) – Of the many issues the COVID-19 pandemic has raised for employers, one that will continue into the “return to the building” phase will be keeping up with equal employment opportunity requirements, particularly those involving employees’ disabilities, genetic information, and religious beliefs.

As employers continue to grapple with unprecedented challenges involving vaccines and getting their workforces back on-site, the Equal Employment Opportunity Commission has fresh guidance on complying with the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and Title VII of the Civil Rights Act.

The commission previously put out vaccine guidance at the end of last year, just before most people started rolling up their sleeves for the most anticipated jab in recent history. Now, with significant numbers of people vaccinated and a push to get employees back in the office soon, the EEOC updated its Q&A document by adding or revising nearly two dozen items. Here’s a breakdown of the EEOC’s latest positions.


EEOC Guidance

Employers’ vaccine requirements It’s not against the law to require all employees physically entering a workplace to be vaccinated for COVID-19. However, it is unlawful to apply a vaccination requirement in a way that treats employees differently based on disability, race, color, religion, sex, national origin, age, genetic information, unless there is a legitimate nondiscriminatory reason.
Reasonable accommodations or modifications Employees with ADA-covered disabilities or those with “sincerely held” religious beliefs may be entitled to a reasonable accommodation to skip vaccination. Some accommodations could include:

  • Wearing a face mask.
  • Working at a social distance from coworkers or nonemployees.
  • Working a modified shift.
  • Getting periodic COVID-19 tests.
  • Teleworking.
  • As a last resort, accepting a reassignment.
“Direct threat” rule Employers may require vaccinations as a safety standard that is “job-related and consistent with business necessity.” However, if an employee cannot meet the standard – being vaccinated – due to a disability, the employer cannot require compliance unless the employee poses a “direct threat” to the health or safety of the employee or others in the workplace. According to 29 CFR 1630.2(r), a “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
How to determine a “direct threat” exists The “direct threat” analysis involves consideration of these four factors:

  1. The duration of the risk.
  2. The nature and severity of the potential harm.
  3. The likelihood that the potential harm will occur.
  4. The imminence of the potential harm.

The assessment of the threat should take account of:

  • Whether the employee works alone or with others.
  • Whether the employee works inside or outside.
  • The available ventilation.
  • The frequency and duration of the direct interaction the employee will have with other people.
  • The number of partially or fully vaccinated people in the workplace.
  • Whether other employees are wearing masks or undergoing routine COVID-19 testing.
  • The space available for social distancing.
Employees’ vaccination information Under the ADA, documentation of an employee’s COVID-19 vaccination is confidential medical information. Although employers may require employees to bring in documentation or confirmation of vaccination, the information must be treated like other medical information, kept confidential, and stored separately from the employee’s personnel files.
Employees seeking accommodation An employee with a disability who does not get vaccinated because of the disability must let the employer know that she needs an exemption from the requirement or a change at work. To request an accommodation, the employee doesn’t need to mention the ADA or use the phrase “reasonable accommodation.”

Employers and employees must engage in an interactive process to identify accommodation options that don’t impose significant difficulty or expense on the employer. This process may include determining whether the employer needs supporting medical documentation about the employee’s disability.

Denying accommodation requests Per the requirements of 29 CFR 1630.2(p), employers must offer an available accommodation if one exists that doesn’t involve a significant difficulty or expense, known as an “undue hardship.” The EEOC directs employers to rely on CDC guidance for deciding whether an effective accommodation is available.
Employer-provided vaccinations Where an employer requires employees to get the vaccine from the employer or its agent, the ADA’s restrictions on disability-related inquiries and medical examinations apply.

Particularly, pre-vaccination screening questions must be “job-related and consistent with business necessity.” To meet this standard, the employer must have a reasonable belief based on objective evidence that an employee who doesn’t answer the questions and, therefore, can’t be vaccinated, would pose a direct threat to the employee’s health or safety or to the health and safety of others in the workplace.

Voluntary vaccination programs When employees can choose whether or not to get the vaccine from the employer or its agent, the employer doesn’t have to show that pre-vaccination screening questions are job-related and consistent with business necessity if the employee’s decision to answer the questions is voluntary.
Voluntary vaccinations to certain groups Not offering voluntary vaccinations to certain employees based on national origin or another protected basis under EEO laws is not permissible.
Post-vaccination accommodations It’s possible that some fully vaccinated employees may seek accommodations for an underlying disability because of a continuing concern that they face a heightened risk of severe illness from COVID-19 despite being vaccinated. For example, people who are immunocompromised might not receive the same measure of protection from the vaccine as other vaccinated people.

In such a case, the employer should engage in an interactive process to determine if there is a disability-related need for an accommodation.

Religious beliefs Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, under 29 CFR 1605, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Title VII “undue hardship” The “undue hardship” standard for religious accommodations is an easier one for employers to meet than its counterpart under the ADA. Under Title VII, an “undue hardship” means having more than a minimal cost or burden on the employer. Relevant considerations can include:

  • The proportion of employees in the workplace who are partially or fully vaccinated.
  • The extent of employee contact with nonemployees whose vaccination status could be unknown.
Pregnancy Employees may seek an exemption from vaccine requirements due to pregnancy under Title VII. Those who do may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave.
Genetic information Requiring an employee to receive a COVID-19 vaccine doesn’t violate GINA unless the pre-vaccination screening questions ask about the employee’s family medical history. The CDC’s pre-vaccination checklist doesn’t seek family medical history, so employers who use it would not violate GINA.
Vaccination incentives for employees Employers may offer incentive to employees to voluntarily provide documentation or other confirmation of a vaccination. If the employer or its agent administers the vaccination, the incentive may not be “so substantial as to be coercive” as doing so could make employees feel pressured to disclose protected medical information.
Vaccination incentives for employees’ family members Under GINA, employers may not offer incentives to employees in exchange for their family members’ receipt of a vaccination from the employer or its agent. Providing such an incentive would require the vaccinator to ask the family member pre-vaccination medical screening questions that would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.

If no incentive is involved, employers may offer vaccinations to employees’ family members if they don’t require it or penalize employees if their family members don’t get vaccinated.

In such a case, all medical information must be kept confidential and not be provided to anyone who makes employment decisions. Additionally, employers must obtain “prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions” about her medical conditions.

Best practice Employers introducing COVID-19 vaccination policies should notify all employees that they will consider requests for reasonable accommodations based on disability or sincerely held religious beliefs on an individualized basis.


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