EEOC Updates Vaccination Guidance

The EEOC has updated and expanded its COVID-19 pandemic-related technical assistance Q&As targeted to federal EEO laws. It also posted a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic. Most notably, the updated Q&As provide long-awaited guidance for employers on the extent to which they may lawfully offer incentives to employees for COVID-19 vaccination without running afoul of the ADA.

The updated Q&As and the new resource follow an April 28 Commission hearing on the impact of the COVID-19 pandemic on civil rights in the workplace that featured a wide range of experts (see "Experts share insights on intersection between COVID-19 pandemic and civil rights issues," April 29, 2021). The EEOC noted that the updated Q&As and the new resource were prepared prior to the CDC’s new guidance for fully vaccinated individuals issued on May 13, 2021, and thus do not specifically address that new guidance.

As new developments occur, the EEOC will consider any impact they may have on the Commission’s COVID-19 technical assistance and will provide additional updates and assistance to the public as needed.

Q&A update summary. The EEOC provided a summary of the key updates to the technical assistance Q&As:

• Federal EEO laws do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII’s other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. Employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.

New resource. The new resource for job applicants and employees provides basic information about how federal employment discrimination laws help workers who are being harassed, who need extra protection against getting sick, who are not being allowed to work, or who need a modification of their employer’s COVID-19 safety requirements.

Employer-provided incentives for voluntary vaccination. Stakeholders have been prodding the EEOC to issue guidance on whether and to what extent they may offer employees incentives to get vaccinated for COVID-19. The Commission has now provided some much-anticipated guidance, although further clarification may be necessary.

Under the ADA. The EEOC’s Q&As provide the following information about incentives for voluntary vaccination and the ADA:

• Documentation of vaccination. Employers may offer an incentive for employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community, because requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA. However, the employer is required to keep vaccination information confidential pursuant to the ADA.
• Receiving vaccination from the employer or its agent. An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent, provided that any incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. This incentive limitation does not apply where an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

What incentives are coercive? One gap in the information provided by the EEOC is any further discussion of what constitutes a "coercive" incentive in this setting. What is so substantial as to be coercive and thus no longer voluntary under the ADA? This was a central issue in the Commission’s prior efforts to delineate regulations covering permissible incentives related to employer-sponsored wellness plans under the ADA and GINA. 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 were withdrawn. The prior version of the incentive rules had been vacated in December 2017 by a federal court in the District of Columbia. Hopefully, the EEOC will further clarify this question.

Under GINA. The FAQs also discuss employer incentives related to voluntary vaccination under GINA:

• Documentation of vaccination. An employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated because it is not an unlawful request for genetic information under GINA. The fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as family medical history under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.
• Vaccination by employer or its agent. As long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated. Because the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information, employers may offer incentives to their employees for getting vaccinated.
• Family member vaccination by employer or its agent. An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions would lead to the employer’s receipt of genetic information about the family medical history of the employee. The GINA implementing regulations prohibit employers from providing incentives in exchange for genetic information.
• Family member opportunities for vaccination. An employer may offer vaccinations to an employee’s family members, provided it takes certain steps to comply with GINA. Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated. Employers must also ensure that all medical information obtained from family members during the screening process is only used 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. Employers also must ensure that they obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions. If these requirements are met, GINA permits the collection of genetic information.

More to come. The EEOC will likely provide further assistance as it is developed. Said EEOC Chair Charlotte A. Burrows: "The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy to understand, and helpful information. We will continue to address the issues that were raised at the Commission’s recent hearing on the civil rights impact of COVID-19."

Source: Written by Pamela Wolf, J.D.

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