On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of updated guidance regarding the COVID-19 vaccine, providing welcome clarity around a number of vaccine-related issues for employers, as they are revising safety policies and adjusting practices in response to new federal and state guidance on face coverings and social distancing. The EEOC confirmed its prior guidance that employers may mandate that employees be vaccinated for COVID-19, including as a condition to entering the workplace, subject to reasonable accommodation requirements under applicable law, while providing more significant detail on how employers should:

• implement vaccine mandates,

• receive and maintain documentation regarding an employee’s vaccination,

• implement vaccination clinics hosted by the employer or its agent, and

• educate or incentivize employees to receive the vaccine.

Considerations for Vaccination Mandates, Employer-Administered Vaccinations, and Other Vaccine-Related Policies

As we have previously explained, the EEOC has approved employers’ ability to require employees to receive a vaccine, so long as employers offer reasonable accommodations to employees who decline vaccination due to a disability or a sincerely held religious belief. According to the EEOC, employers may implement a mandatory COVID-19 vaccination policy even if they know that some employees may not get vaccinated for a protected reason (see FAQ K.3). The updated guidance further explains that if a vaccination program is administered by an employer or its agent and the employer requires the employees to be vaccinated by the employer or its agent, the restrictions set forth under the federal Americans with Disabilities Act (“ADA”), which prohibit disability-related inquiries unless they are job related and consistent with business necessity, are applicable to pre-vaccination screening questions (see FAQ K.7).

The EEOC’s new guidance also recognizes that employees may present accommodation requests in varying contexts. For example, fully vaccinated employees may request an accommodation for an underlying disability because of a concern that he or she faces a heightened risk of severe illness from COVID-19 (such as immunocompromised employees), and employers should engage in the interactive process to determine whether a reasonable accommodation is necessary in such an instance (see FAQ K.11). Additionally, if an employee seeks a job adjustment or an exemption to an employer’s vaccination requirement due to pregnancy, the employer may be required to make a job adjustment or exemption if other employees have received such modifications due to their similar ability or inability to work (see FAQ K.13).

Of course, employee medical information obtained through an employer vaccination program must also be maintained as confidential.

Employers’ Obligations to Offer Reasonable Accommodations

The EEOC has updated its guidance regarding reasonable accommodations for employers that mandate vaccines and highlighted the importance of a fact-specific analysis in each situation. For example, when determining whether an employee who cannot be vaccinated for a protected reason poses a direct threat to the workplace, the employer should consider the current COVID-19 medical knowledge, including the level of community spread at the time of the assessment. Additionally, the EEOC instructs that employers need to consider “all the options” before denying an accommodation request for an employee seeking an exemption for a protected reason, which analysis should include the proportion of employees in the workplace who are already partially or fully vaccinated, as well as the extent of the employee’s contact with potentially unvaccinated non-employees. Employers may rely on recommendations from the Centers for Disease Control and Prevention (“CDC”) when deciding whether an effective accommodation is available that would not pose an undue hardship.

The updated EEOC guidance also provides helpful examples of accommodations that employers may offer to employees who cannot be vaccinated due to disability or religion. The examples include wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodically tested for COVID-19, being given the opportunity to telework, and accepting a reassignment (see FAQs K.2 and K.6 ). The EEOC suggests that employers may consult the Job Accommodation Network (“JAN”) website as a resource for different types of accommodations. JAN’s materials about COVID-19 are available here. Employers also may consult applicable Occupational Safety and Health Administration (“OSHA”) COVID-specific resources.

Old Questions Answered, New Questions Raised

Although the guidance provides clarity on many issues, it also injects some ambiguity into employers’ efforts to shape vaccination policy. For instance, FAQ K.9 confirms that “[w]hen an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability. . . . Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.”

However, FAQ K.9 also instructs that “documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.” Similarly, FAQ K.4 states that employers must maintain the confidentiality of employee medical information, including “documentation or other confirmation of COVID-19 vaccination.”

The guidance does not clearly explain what is meant by “other confirmation of COVID-19 vaccination.” Interpreted broadly to include any and all information relating to vaccination status, this phrase could arguably limit employers’ ability to enforce a face mask policy that, consistent with CDC guidance, allows vaccinated employees to remove masks at work but requires unvaccinated employees to wear masks, and would certainly limit employers’ ability to designate certain employees as vaccinated and others as not vaccinated (e.g., by designating same on an employee ID badge or lanyard). However, it is also possible that the phrase “other confirmation of vaccination” should be narrowly construed to apply only to documentation other than an actual copy of the CDC vaccination card (e.g., certifications from the employee as to vaccination status, responses to questionnaires, or simply a list maintained by the employer of which employees are vaccinated). The latter, narrower interpretation would seem to better allow employers to follow the recent federal, state, and local guidance permitting a relaxation of mask mandates in some workplace settings where all or some individuals are fully vaccinated.

Questions also remain about the lengths to which employers may go to encourage their employees to become vaccinated. The updated EEOC guidance makes clear that employers may offer rewards and incentives for employees to become vaccinated, including vaccination by the employer or its agents. If employers offer incentives for vaccination by the employer or its agent, however, FAQ K.17 states that the incentive may not be “so substantial as to be coercive,” such as a “very large incentive.” The EEOC did not give specific examples of what might constitute “substantial” or “very large” incentives that would be deemed coercive (i.e., a cash payment of $1,000). Similar to existing and proposed EEOC guidelines on incentives in other contexts, the guidance does not create a bright line on what size incentive would be coercive. We do not expect that paid time off for obtaining the shot and recovery, and maybe travel costs (if any), will be considered coercive. Gift cards or other items of nominal cash value likely will be deemed acceptable incentives. Similar to recent approaches by some states, a lottery for a substantial prize to incentivize a larger population might also not be coercive.

Notably, the restriction that rewards and incentives cannot be coercive appears to apply only to vaccine programs that are sponsored by an employer (i.e., the restriction does not apply to encouraging employees to become vaccinated by a wholly independent third-party provider). In other words, it appears that any incentives for employees who have been vaccinated by independent parties, such as community health clinics or pharmacies, have no limits.

If and when the EEOC issues anything to further clarify its position on these questions, we will advise accordingly.

What Employers Should Do Now

In light of this updated guidance from the EEOC, employers implementing mandatory COVID-19 vaccination policies should:

• train managers, supervisors, and human resources professionals on how to recognize an accommodation request from an employee with a disability or sincerely held religious belief, and how to respond to such a request, including by engaging in the interactive process;

• be prepared to make reasonable accommodations for those employees who cannot be vaccinated due to a protected reason or those who may have health concerns even if fully vaccinated (e.g., immunocompromised individuals), and consider the feasibility of the accommodation examples offered by the EEOC;

• monitor the current community spread of COVID-19 and employee vaccination rates to determine whether unvaccinated employees should be excluded from the workplace;

• offer the same or similar job adjustments to pregnant employees who are unable to be vaccinated;

• consider whether mask wearing, social distancing, and other requirements in the workplace may be deemed as the employer disclosing the vaccination status of employees; and

• take steps to protect and maintain the confidentiality of “employee medical information, such as documentation or other confirmation of COVID-19 vaccination.”

Employers that choose to encourage, rather than mandate, vaccination, should:

• consult the CDC’s “tool kit” to assist in educating the workforce about getting a COVID-19 vaccine;

• consider the impact of offering employees rewards or incentives to obtain vaccines, and the method, type, and delivery of such rewards or incentives; and

• review any reward or incentive program offered to employees to obtain vaccines through the employer or its agent to ensure the rewards and incentives are not coercive.

All employers should continue to monitor the EEOC’s guidance for updates related to the CDC’s May 13, 2021, guidance, which stated that fully vaccinated individuals do not have to wear face masks or social distance except in limited circumstances. The EEOC’s FAQ page says that the agency “is considering any impact of these developments on COVID-19 technical assistance provided to date,” and it is possible that the EEOC will further update its FAQs in response to the CDC’s guidance.