On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated COVID-19 Technical Assistance Section K on Vaccinations.
According to the EEOC’s release, the updated technical assistance provides additional information on how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer mandates that employees become vaccinated or offers incentives for employees to provide vaccination confirmation when employees get a vaccine in the community, from the employer or through an employer-sponsored program. However, the technical assistance answers COVID-19 questions only from the perspective of the Equal Employment Opportunity (EEO) laws. Employers should remain aware that other federal, state and local laws may restrict employer vaccine programs and mandates. This guide focuses on the EEOC’s recommendations and laws, so employers should seek the advice of their in-house or labor counsel to determine whether labor and employment laws impose additional requirements not mentioned by the EEOC.
In some circumstances, Title VII and the ADA require employers to provide reasonable accommodations for employees that do not get a COVID-19 vaccine.
The ADA requires employers to offer a reasonable accommodation when an employee has a disability. In addition, Title VII requires employers to provide a reasonable accommodation for employees with a sincerely held religious belief, practice or observance. However, the laws do allow employers to avoid offering a reasonable accommodation if it can demonstrate that providing an accommodation would pose an undue hardship on the operation of the business. 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 (Title VII accommodation). The ADA requires that employers offer an available accommodation – and exhaust or consider all possible options – if one exists that does not pose an undue hardship, meaning significant difficulty or expense. Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.
When mandating vaccination before employees can return to work, employers should plan for how they will handle reasonable accommodation requests.
According to the EEOC, employers should engage in a flexible, individualized, interactive process with an employee requesting a reasonable accommodation to identify the workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer. This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability. In discussing accommodation requests, employers and the requesting employee may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations. JAN has material specific to COVID-19 accommodations. Employers can also consult OSHA COVID-19 specific resources. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, or making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees). Even if there is no reasonable accommodation that will allow the unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, employers should consider other options. For example, telework may be an available accommodation option and, as a last resort, reassignment to another position is a possible accommodation.
The EEOC reiterated that a COVID-19 vaccination incentive campaigns could offer employees an incentive for receiving a vaccine.
Employers can create an incentive program as an extension of their wellness program or a standalone wellness incentive plan. Rewards for participation in wellness programs can take many forms, from cash or cash equivalents (e.g., gift cards or gift certificates), to health plan-related rewards (e.g., reductions or waivers in employee cost-sharing features, such as premiums, copayments, deductibles or additional employer-provided benefits), to other noncash rewards (e.g., employee discounts or merchandise prizes). Penalties for nonparticipation in a wellness program usually take the form of financial penalties. The EEOC mentioned that when tying wellness participation to employment, including whether a job seeker qualifies for employment based on vaccine status, state employment law issues may arise, which may or may not be preempted by the Employee Retirement Income Security Act (ERISA).
The guidance states that when employers provide employees with an incentive to receive a vaccination, the incentive cannot be so great as to count as “coercive.”
The EEOC did not define “coercive.” The EEOC said that a coercive incentive could include both rewards and penalties. For example, employers can request documentation or other confirmation that an employee received a COVID-19 vaccination. Suppose an employer is offering incentives to encourage employees to provide such information voluntarily. In that case, the “coercive” limitation does not apply, so long as the employer gives the incentive to employees who voluntarily confirm that they received a vaccination from a third-party provider. Employers cannot offer incentives to employees in exchange for their family members to receive a vaccine from the employer or its agent because it may violate GINA requirements. However, employers may offer incentives to employees to provide documentation or other confirmation that their family members received a vaccine from their own healthcare provider. The EEO law’s vaccine technical assistance guide discusses the circumstances under which employers may offer COVID-19 vaccination incentives to employees.
Requiring an employee to receive a COVID-19 vaccination administered by their employer or a sponsored plan does not implicate GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information.
According to the EEOC, as of May 27, 2021, the current set of pre-vaccination medical screening questions developed by the Centers for Disease Control and Prevention (CDC) for the current COVID-19 vaccines do not seek family medical history or any other type of genetic information. GINA even permits employers to offer vaccinations to an employee’s family members if it takes specific 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 to provide the vaccination, is kept confidential and is not provided to any managers, supervisors or others who make employment decisions. Employers must also 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.
Most of the currently available guidance and recommendations indicate that voluntary or incentive plans present fewer administrative burdens and compliance issues. However, information and rules relating to the COVID-19 response evolve constantly so employers should continue to monitor new laws, regulations and guidance from federal and state authorities.
EPIC offers this material for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this document and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.
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