The EEOC Answers More Questions Related to COVID-19 and Vaccines
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
June 1, 2021
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On Friday, May 28, 2021, the EEOC issued additional guidance for employers related to vaccines, including whether employers can offer incentives to their employees in order to get vaccinated. This guidance applies to all employers subject to the federal employment discrimination laws enforced by the EEOC, such as Title VII, the ADA, and the ADEA. The updated guidance answers the following questions:
- May an employer require that all employees receive the vaccine before returning to work?
- Yes, so long as the employer provides accommodations to employees who request one due to a disability under the ADA or a religious objection under Title VII. The EEOC notes that employer must also consider whether the vaccine requirement disproportionately impacts minorities because of (for example) their ability to obtain a vaccine.
- What are some examples of potential reasonable accommodations?
- An unvaccinated employee might wear a face mask, work at a social distance from other employees and customers, work a modified shift, get periodic COVID-19 tests, be given the opportunity to telework, or accept a reassignment.
- May an employer encourage an employee to receive the vaccine and, if so, how can they do it?
- Yes, employers may encourage employees to receive the vaccine. An employer can do so by providing employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.
- May an employer require that employee provide proof they have received the vaccine?
- Yes, so long as that information remains confidential.
- May an employer offer vaccinations only to certain group of employees?
- Offering vaccines only to certain groups may run afoul of anti-discrimination laws if, for instance, the vaccine is only offered to younger employees, or those of a certain nationality. As a result, employers should consult with counsel prior to considering whether to offer the vaccine only to a limited group of employees.
- May an employer offer an incentive to employees to voluntarily provide documentation that they received the vaccine from a third-party such a pharmacy or health care provider in the community (i.e., not the employer or its agents)?
- Yes. Because proof of a vaccination is not a disability-related inquiry, employers may offer incentives for that information. Again, however, employers must keep that information confidential.
- May an employer offer an incentive for employees to receive the vaccine from the employer or its agents?
- Yes, if 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 to their employer. As a result, the incentive cannot be so large that it could be coercive. But, this incentive limitation does not apply if 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.
- Under the Genetic Information Nondiscrimination Act (“GINA”) may an employer provide incentives to employees to provide documentation that they or their family members received a vaccine from a third-party such as a pharmacy?
- Yes. Under GINA, 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. That type of request is not an unlawful request for genetic information under GINA because 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.
- Under GINA, may an employer provide an incentive for an employee to receive the vaccine from the employer or its agent?
- Yes, so long as the employer does not require the disclosure of genetic information in exchange for the vaccine. And because the current pre-vaccine questions do not require that type of information, an employer may provide an incentive to get the vaccine without violating GINA.
- Under GINA, may an employer provide an incentive for an employee’s family member to receive the vaccine from the employer or its agent?
- No, because then the employer would have to ask medical questions of the family member and that would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.
- Under GINA, may an employer offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive?
- Yes, so long as the employer does not require that the family member receive the vaccine and does not penalize the employee if the family member does not get the vaccine. Employers must also ensure that all medical information obtained from family members is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees. Further, employers must 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.
As vaccines become more prevalent and as more employers begin to open up, employers should start planning for the best way to open up safely and without violating any federal anti-discrimination laws. Please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424, if you need guidance and assistance.
