By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

• Yes – does not violate ADA or GINA.
• However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
• Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

• Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
• The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3

• Provide information about the benefits of vaccination, address common questions and concerns, share CDC toolkits
• Identify nearby vaccination sites
• Assist employees who have difficulty making vaccination appointments due to lack of reliable internet access or language barriers
• Provide information on low cost/ no cost transportation resources
• Offer time-off to get vaccinated

May employer offer employees an incentive to get vaccinated?  See FAQs K3, K17, K21

• Yes, incentives includes both rewards and penalties.
• If an employer’s employee is getting the vaccine from a third-party provider, there is no limit to the size of an incentive the employer may offer.  However, if the employer or the employer’s agent is the entity that is actually providing the vaccine directly to the employee, like a hospital as both employer and vaccinator, then the employer-offered incentive may not so be “so substantial as to be coercive” (but no examples or amounts provided).
• The same analysis applies to incentives offered for vaccination of employees’ family members.
• The rationale for the limit on incentives by employer-vaccinator is “because vaccinations require employees to answer pre-vaccination disability-related screening questions, [so] a very large incentive could make employees feel pressured to disclose protected medical information” and thus violate GINA.

Can employers provide employee vaccinations directly or through an agent on either a mandatory or non-mandatory basis?  See FAQs K7, K8, K9, K10

• Yes.  Administering the vaccination is not itself a medical examination under the ADA.
• Vaccinations can be mandatory if both “job related” and “consistent with business necessity”
• If vaccinations are offered on a voluntary basis:
  • employer does not need to establish that pre-vaccination screening questions are “job-related” or “consistent with business necessity”
  • cannot be offered only to some employees based upon national origin or other EEO protected basis

Can employer mandate employee vaccinations under federal law?  See FAQs K1, K5

• Yes, subject to reasonable accommodations for sincerely held religious and medical/disability reasons (including pregnancy).
• Employer should provide instructions for employee to request a reasonable accommodation for a disability or sincerely religious belief, practice, or observance.
• Mandates are acceptable under the ADA if the vaccine is both “job-related” and “consistent with business necessity,” such as “a safety-related standard requiring COVID-19 vaccination.”
• Employer may not require vaccination of employees with an affected disability unless employer can demonstrate that an unvaccinated employee poses “a direct threat” to the health or safety of the employee or others in the workplace.

What is required in the way of an “Individualized Assessment” as part of the reasonable accommodation process?  See FAQs K2, K5, K6, K11, K12, K13

• May be requested by employee who declines vaccination based upon religious or medical reasons, or by a person who is immunocompromised because the vaccination may not offer the same protection.
• Process to request accommodation
  • “Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom to refer the request for full consideration.”
  • ”To request an accommodation, an individual does not need to mention the ADA or use the phrase ‘reasonable accommodation.’”

• Two-step evaluation by employer based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19 (including current level of community spread, CDC, medical information from employee’s health care provider if given with the employee’s consent):

First step – Is there a “direct threat” (significant risk of substantial harm) to employee requesting accommodation or others in the workplace?

4 factors to evaluate employee’s present ability to safely perform the essential functions of the job

• duration of the risk
• nature and severity of the potential harm
• likelihood that the potential harm will occur
• imminence of the potential harm

Other considerations

• work environment, ventilation; frequency and duration of direct interactions with others in the workplace; number of partially or fully vaccinated individuals in the workplace; whether other employees are wearing masks or undergoing routine screening testing;  space available for social distancing.

Second step – Is there a reasonable accommodation that would (a) not pose an undue hardship to the employer, and (b) reduce or eliminate the threat?

• What is undue hardship?  See FAQ K6 (disability including pregnancy) and FAQ K12 (religion)
• Considerations: proportion of employees partially or fully vaccinated, the extent of contact with non-employees who may be ineligible for a vaccination or whose vaccination status may be unknown
• Employer may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.
• Examples of reasonable accommodations
  • wear a face mask
  • social distance from others in the workplace
  • work a modified or staggered shift
  • change the work environment (i.e. ventilation)
  • periodic testing for COVID-19
  • telework
  • reassignment to a different workspace
  • reassignment to a vacant position
• Protect confidentiality – Employer may not disclose that an employee is receiving a reasonable accommodation.
• No retaliation – Employer may not retaliate against an employee for requesting an accommodation.

Please contact any of the attorneys on CMC’s COVID-19 Task Force let us know if you have any questions about these tricky vaccination issues.  If you do not already have written vaccination policies, we highly recommend you develop and implement those, and we can help with that.  Likewise, if you already have vaccination policies, we would be happy to do a quick gap assessment to make sure they are compliant with the latest EEOC and OSHA guidance.