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June 8, 2021 | Covid-19 | Posted by Bob Greene, Senior HR Industry Analyst at Ascentis

The Latest Developments in Employer COVID Vaccination Regulation: The EEOC Has Spoken!

As all employers should be aware, the EEOC maintains a “rolling,” or cumulative set of regulatory guidelines in question-and-answer format related to the COVID pandemic and relevant employment laws it enforces like the Americans with Disabilities Act of 1990 (the “ADA”), the Rehabilitation Act of 1973 (the “Rehab Act”), and the Genetic Information Nondiscrimination Act of 2008 (“GINA”), among others.

On May 28, 2021, the EEOC performed its first major update to this guidance since December, 2020, focused primarily on issues piqued by an employer’s desire to participate in the effort to vaccinate Americans against the deadly coronavirus. Here’s a summary of that update.

“Section K”

The EEOC organizes their pandemic-related advice to employers (“What You Should Know” About COVID-19…”) into multiple sections of questions and answers, and modified Section K on May 28 to address vaccination-driven issues. Section K had originated on December 16, 2020, and the May 28 update added 21 new or updated answers to questions. The EEOC prominently disclaims that this guidance does NOT yet incorporate the CDC’s latest advice, issued May 13, exempting fully vaccinated individuals from masking requirements, stating that the impact of this new advice is still being evaluated by EEOC (and perhaps as relevant, albeit unstated, the EEOC does not want to “get out in front” of OSHA, from whom we are still awaiting revised formal workplace guidance, since it was originally due under President Biden’s Executive Order, by April 15.)

In Q&A K-1 through K-3, the EEOC reiterates guidance that mandating vaccination for employees returning to a communal workspace IS permissible under the ADA and related laws, provided that the traditional appropriate exceptions are granted: for disability, sincerely-held religious belief, or pregnancy. (NOTE: The EEOC highlights, but does not resolve, the issue that the currently available vaccinations are all being administered under “EUA” (emergency use authorization), rather than full FDA approval, and employees not fitting any of the traditional ADA exception classes may choose to refuse the vaccine on that basis. The conservative approach for employers deciding to mandate their employees be vaccinated would likely be to honor the request for exemption by any employee citing the vaccines’ EUA status as their justification, but employers should check with their legal advisors on this issue.)

Q&A K-3 addresses the issue of employers wanting to encourage employees to get vaccinated, without going so far as to incentivize or mandate it. The answer reminds employers that COVID vaccines are available free of charge to all residents of the USA (regardless of insurance or immigration status). It goes on to “advertise” a federal service of which many Americans may be unaware: individuals can text their zip code to “GETVAX” (438829, or “VACUNA,” 822862 for service in Spanish) and receive an auto-response listing 3 free vaccination locations near them. The entire answer acts as a reminder to employers that their employee self-service and portal technology can and should be leveraged to disseminate current, reliable information about vaccination availability and logistics.

Q&A K-4 reminds us that information an employer collects about COVID-19 vaccinations, including personally identifiable information for those employees applying for an opt-out of any employer mandate, is confidential under the ADA. Importantly, although no EEOC-enforced law prevents employers from requiring employees to provide documentation of vaccination, some state laws (most notably, Florida) do prohibit that practice.

Q&A K-5 through K-13 get to the heart of the issue of employers mandating vaccines. The EEOC reiterates its prior guidance that generally, vaccine mandates ARE legal (Q&A K-5) but they are subject to the ADA’s previously standing exceptions around employee disability, sincerely-held religious belief, and/or pregnancy. An employer vaccination mandate does not survive a disability challenge unless the circumstances meet the “direct threat” test (Q&A-6). In situations where the disability is not countered and overcome by the direct threat test, then traditional ADA “reasonable accommodation” rules apply. The answer directs employers to the Job Accommodation Network website for interactive guides on discussions and decision-making for all things ADA and Rehab Act-related. Finally, Q&A K-6 reminds employers that disclosing that an employee is receiving an accommodation, and/or retaliating against an employee for requesting or receiving that accommodation, are both violations of the ADA.

Q&A K-7 draws an important distinction between a vaccination mandate itself, which is NOT a medical examination under the ADA, and the pre-vaccination questionnaire which all medical personnel administering the vaccines require to be completed. The process of eliciting answers from the employee prior to being injected is likely to be a medical examination, since the questions are likely to go beyond only those that are “job-related and consistent with business necessity.” If these answers are solicited under the auspices of a mandatory vaccine program – regardless of whether the administration is by an employer-retained third party – the pre-vaccination questionnaire can become a medical examination. Q&A K-8 reminds employers that where the employer vaccination program is encouraged and facilitated (but not mandated) by the employer, and employees are expressly permitted to refuse to complete the pre-vaccination questionnaire (and not receive the vaccine), then the process does not rise to the level of a medical examination.

Q&A K-9 tells us that it is NOT a disability-related inquiry under the ADA for an employer to request vaccination documentation (or “proof”) from a third party such as a pharmacy, healthcare provider, or public clinic, however, any such information obtained by the employer must be kept confidential. And remember, the EEOC speaks only for federal law and regulations; at this writing some 15 states, either through executive fiat, or state legislation, have banned the process of requiring proof of vaccination. For an excellent, continuously updated website on each of the 50 states’ status on so-called “vaccine passport” or forced disclosure rules, see this Ballotpedia article on the topic.

Q&A K-10 warns employers that policies they adopt that offer voluntary vaccinations only to certain subsets of their employee populations MAY run afoul of the ADA, if they discriminate in offering that benefit, e.g., on the basis of national origin, sex, race, or any other protected basis.

Q&A K-12 addresses the issue of “sincerely-held religious beliefs” on the part of employees as objections to vaccination, and K-13 addresses the issue of pregnancy. In both situations, the Commission directs employers to Title VII, rather than the ADA, and long-standing guidance on the legitimacy of declared religious beliefs (including the assumption that they are sincere), accommodation alternatives (including telework and reassignment), and the traditional definition of “undue hardship” (“more than minimal cost or burden,” under Title VII) in an employer’s evaluation of an accommodation possibility. K-13 reminds employers that the standard for evaluating an accommodation request for pregnant employees must be the same as for similarly situated employees with other, non-pregnancy medical conditions.

In Q&A-14 and 15, the EEOC reconciles employer vaccination programs with Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits covered employers from using employees’ genetic information in making employment decisions. Simply stated, the guidance tells us that neither employer-mandated vaccinations, nor the requirement that employees provide proof of vaccination from a doctor, pharmacy, health agency or similar healthcare provider, implicates GINA in the process.

Addressing Employer Incentives

Q&A K-16 through 17 reconcile employer vaccination voluntary incentive programs with the ADA, and K-18 through 21 reconcile them with GINA. With regard to both the ADA and GINA, employers may offer incentives for employees receiving the vaccine, and/or providing documentation that they have received the vaccine on their own. Incentives can be both rewards and penalties (“carrot” and “stick,” so to speak), with the only restriction mentioned in the guidelines being that the incentive must not be “so substantial as to be coercive” in revealing protected medical information. Q&A K-20 and 21 add one more caveat for employers: do not offer incentives in return for an employee’s family members receiving the vaccine, as this would likely run afoul of GINA. However, offering employee family members the opportunity to be vaccinated on a purely voluntary basis, with no incentive to the employee for the family member’s vaccination, is permissible.

As Vaccination Rates Decline, Are Employers’ Actions the Answer?

As of the writing of this blog, daily vaccination rates have declined by nearly two-thirds, to about a million shots per day, from their peak of 3.4 million shots per day in April, with most scientists and health care professionals in agreement that we are not yet near a “herd immunity” level.

Clearly, the Biden Administration would like employers to step up and take a “more assertive” role in the national vaccination effort. Many employers have done so. Companies like Dollar General, Trader Joe’s, Aldi, Chobani, Target Stores, Amtrak, Darden Foods, JBS Meat, Kroger, McDonalds, Tractor Supply, Petco, Tyson Foods, Publix, Shake Shack, and even Instacart, (for its ~800,000 non-employee contractors), are currently offering an array of incentives, from PTO, to free transportation to and from vaccination sites, to extra pay – mostly in the range of $25 to $200.

But mandates have been slower to “catch on,” presumably due to the far more complex legal environment in which they operate. A survey of 700 employers by the law firm Fisher Phillips back in January found only 9% considering mandating the vaccine. Some employers (e.g., United Airlines) have announced that they will mandate the vaccine for new employees but not for those already onboard. And just this week, Houston Methodist Hospital, which employs about 26,000 and earlier this year, had put up to $500 in incentives on the table for some employees, experienced the downside of vaccine mandates. After putting a vaccination deadline of June 7 in place for all employees, a group of employees sued the hospital and held protests outside their facilities.

Bob Greene currently serves as Senior HR Industry Analyst at Ascentis. Bob’s 40 years in the human capital management industry have been spent in practitioner, consultant and vendor/partner roles. As practitioner, he managed payroll for a 5,000-person bank in New Jersey. As consultant, he spent 8 years advising customers in HRMS, and payroll and benefits system design as well as acquisition strategies. Bob also built a strategic HCM advisory practice for Xcelicor (later acquired by Deloitte Consulting.)