On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) provided long-awaited clarification on an employer’s ability to offer incentives to their employees for receiving COVID-19 vaccinations.  This new guidance provides welcomed direction to those businesses looking to encourage workers to get vaccinated rather than adopting a mandatory vaccine policy.  A summary of the EEOC’s guidance on vaccine incentives, as well as other new updates to the EEOC’s previous vaccine-related guidance, is provided below.

Vaccine Incentives

The EEOC identifies the following options for employers to offer their workers incentives for vaccination under the Americans with Disabilities Act (“ADA”):

• Employers can offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination received from an independent third party (e.g., pharmacy, personal health care provider or public clinic).  However, any information or documentation collected should be maintained confidentially under the ADA.

• Employers can also offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, so long as the incentive is “not so substantial as to be coercive.”  Although the EEOC does not go so far as to define “substantial,” it explains that “a very large incentive could make employees feel pressured to disclose protected medical information” when responding to the employer’s pre-vaccination medical screening questions.

Although employers can offer an employee’s family member an opportunity to be vaccinated if certain conditions are satisfied, employers cannot require family members to be vaccinated and should not offer employees incentives for family member vaccination.

Confidential Medical Information

In its updated guidance, the EEOC instructs that the ADA requires an employer to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination, regardless of where the employee gets vaccinated.  Accordingly, while employers can require employees provide proof of vaccination (i.e., doing so is not a “disability-related inquiry”), this information must be maintained confidentially and separate and apart from the employee’s personnel file.

Reasonable Accommodations

The EEOC reiterated that if an employee cannot get vaccinated because of a disability or religious belief, the employer cannot require compliance with a mandatory vaccine policy unless it can demonstrate that the individual would pose a “direct threat” to the health and safety of the employee or others in the workplace.  This determination should be based on consideration of four factors previously-identified by the EEOC, and “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including the level of community spread, statements from the CDC and/or statements from the employee’s health care provider.  The employer must also take into account the employee’s specific work environment.

If the employer determines that the individual would pose a direct threat, it must then consider whether a reasonable accommodation would reduce or eliminate that threat, unless doing so would present an “undue hardship” to the employer.  The EEOC provides specific examples of potential accommodations, including wearing a face mask, social distancing, working a modified shift, making changes in the work environment (e.g., increasing ventilation, limiting contact with others), teleworking, or, as a last resort, reassigning to a vacant position in a different workspace.

Finally, the EEOC cautions that employers should consider all options before denying an accommodation request, and that the “undue hardship” consideration may be impacted by the vaccination rate of the workforce and the extent of employee contact with non-employees (whose vaccination status may be unknown).

Pregnancy

The EEOC’s guidance also clarifies that employees who are not vaccinated because of a pregnancy may also be entitled to certain accommodations under Title VII if the employer makes modifications or exceptions for other employees “who are similar in their ability or inability to work.” These modifications may be the same as the accommodations identified above for employees based on a disability or religious belief.

Emergency Use Authorization

The EEOC declined to offer any insight on the legal implications of the Emergency Use Authorization for the three available COVID-19 vaccines to date, indicating that “[t]he EEOC’s jurisdiction is limited to the federal EEO laws . . . .”  The EEOC reinforced, however, that federal EEO laws do not prevent an employer from requiring employees to be vaccinated as a condition of entering the workplace, subject to the reasonable accommodation requirements under Title VII and the ADA (and other EEO considerations discussed in its guidance).

Updated CDC Mask Guidance

The EEOC acknowledged the recently updated guidance from the CDC exempting fully vaccinated individuals from masking requirements, and indicated that the EEOC is considering the impact of this CDC guidance on the EEOC’s own COVID-19 guidance provided to date.  Accordingly, we may see further updates to the EEOC’s technical assistance soon.  For Polsinelli’s own guidance on responding to the CDC’s updated mask guidance, see here.