Updated EEOC Q&As focus on employer vaccination requirements

Against the backdrop of an increasing number of employers requiring all employees to be fully vaccinated before working onsite in both the private and public sectors, the EEOC on October 13, 2021 updated its question-and-answer series on COVID-19 and the ADA, the Rehabilitation Act, and other equal employment opportunity laws. Updated information provided in Section K of the technical resource focuses on employer vaccination mandates, documentation requests, and permissible incentives.

ADA and Title VII overview. Under the ADA and Title VII, employers are not prohibited from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. In some situations, Title VII and the ADA require employers to provide reasonable accommodations for employees who, due to a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated, unless providing an accommodation would pose an undue hardship to the employer’s business operations. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.

Disparate impact. As with other employment policies, employers with a vaccination requirement may be required to respond to allegations that the requirement has a disparate impact on, or disproportionately excludes, employees based on their race, color, religion, sex, or national origin under Title VII (or age under the ADEA). The EEOC thus suggests that employers keep in mind that “because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.”

Disparate treatment. The federal antidiscrimination agency also warned that it would be unlawful to apply a vaccination requirement to employees in a way that treats them differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless the employer can point to a legitimate non-discriminatory reason.

Encouraging vaccination. Employers are permitted to give their employees and their family members information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. Employers are also allowed to work with local public health authorities, medical providers, or pharmacies to make vaccinations available for unvaccinated workers. Notably, the federal government is providing COVID-19 vaccines at no cost to everyone 12 years of age and older.

Transportation assistance. The agency also noted that employers may gather and disseminate information to employees on low-cost and no-cost transportation resources serving vaccination sites available in their community, and offer paid time-off for vaccination, particularly if transportation is not readily available outside regular work hours.

Accommodation requests. Employers should also provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant.

The ADA and employer information requests. Under the ADA, employers are required to maintain the confidentiality of employee medical information. The EEOC noted that, while EEO laws do not prevent employers from requiring that employees provide documentation or other confirmation of vaccination, this information must be kept confidential and stored separately from the employee’s personnel files under the ADA.

But the inquiry about or request for documentation or other confirmation that an employee obtained a vaccination is not a question likely to disclose the existence of a disability, according to the EEOC. There are many reasons that an employee may not show documentation or other confirmation of vaccination besides having a disability. Thus, requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA, and related rules are not applicable.

Not vaccinated due to pregnancy. Where an employee seeks a vaccination exemption due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work, according to the EEOC. This is a Title VII issue. Pregnant employees may be entitled to job modifications including:

• Telework;
• Changes to work schedules or assignments; and
• Leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.

The antidiscrimination agency also said employers should make sure that supervisors, managers, and HR personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

GINA and vaccination documentation. When employers require employees to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, the employer is not using, acquiring, or disclosing genetic information and, thus, Title II of GINA is not implicated.

This is true even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information, according to the EEOC. Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information—the prohibition applies only to the employer or its agent.

Employer vaccination incentives. The ADA does not limit the incentives that employers may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, when the health care provider administering a COVID-19 vaccine is not the employer or its agent. However, when the vaccination is administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply, and the value of the incentive may not be so substantial as to be coercive.

When the employer or its agent administers a COVID-19 vaccine, the value of the incentive, including both rewards and penalties, may not be so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, the EEOC explained that a very large incentive might make employees feel pressured to disclose protected medical information to their employers or their agents.

Under GINA. Similarly, GINA does not limit the incentives that an employer may offer to employees to encourage them or their family members to get vaccinated or provide confirmation of vaccination when the health care provider administering the vaccine is not the employer or its agent. Moreover, when an employer asks an employee for vaccination documentation for the employee or their family members, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member, nor is it any other form of genetic information. As a result, GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information) do not apply.

Source: Written by Pamela Wolf, J.D.

From WCI's HR Answers Now ©2021 CCH Incorporated and its affiliates. All rights reserved.