COVID-19 and EEOC (EEOC Guidance)

• On May 28, 2021, the EEOC issued its updated guidance on various issues raised by COVID-19 in the workplace.

• The EEOC has reiterated that employers may require employees entering the workplace to be vaccinated provided that employers provide reasonable accommodations to employees with underlying disabilities or for sincerely-held religious beliefs that preclude vaccination. If an employee requests an accommodation, employers should engage in the interactive process. The EEOC provides a list of possible reasonable accommodations an employer could provide under such circumstances, such as asking unvaccinated employees to continue to wear a face mask, providing modified work shifts, requiring periodic testing for COVID-19 or providing the opportunity to telework. The EEOC advises that when addressing an employee's request for a religious accommodation an employer should ordinarily assume that an employee's request is based on a sincerely-held religious belief absent an "objective basis" for questioning the religious nature or sincerity of the particular belief.

• Other key takeaways from the EEOC's guidance include:

• The vaccination itself is not a medical examination. The EEOC's guidance regarding the COVID-19 vaccine states that the mere administration of a vaccination - standing alone - is not a medical examination under the Americans with Disabilities Act ("ADA").

• Vaccination status is confidential medical information according to the EEOC. As a result, vaccination status documentation should be stored separately from the employee's personnel file and otherwise treated as confidential information under the ADA.

• Employers may offer incentives to employees for voluntarily providing documentation or other confirmation that they or their family members were vaccinated.

• Employers may offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, as long as the incentive is "not so substantial as to be coercive." Notably, the EEOC clarifies that "incentives" includes both rewards and penalties. Employers have begun considering and implementing additional days of paid time off, gift cards and other incentives to promote vaccination among their workforces since the CDC issued its latest guidance for fully-vaccinated individuals. Importantly, under GINA, employers may not offer an incentive to an employee in return for an employee's family member getting vaccinated by the employer or its agent.

• If conducted by the employer, pre-screening inquiries - which are recommended by the CDC - are likely disability-related inquiries under the ADA. The CDC's vaccine guidance states that health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination. If conducted by the employer or a third party contracted by the employer, these pre-screening inquiries are likely disability-related inquiries under the ADA. In order to make such inquiries, the employer would need to have a reasonable belief that an unvaccinated employee will pose a direct threat to the health or safety of themselves or others. The EEOC noted that if the employer offers the vaccine on a voluntary basis, the ADA requires that the employee's decision to answer be voluntary as well. If the employee refuses to answer the questions, the employer can refuse to administer the vaccine but may not retaliate, intimidate or threaten the employee for refusing to answer.

• A request that an employee show proof of receipt of a COVID-19 vaccine is not a disability-related inquiry. The EEOC notes that there may be a number of reasons why employees choose not to get the COVID-19 vaccine, including reasons that are not disability-related. As such, the mere request for proof of receipt of the vaccine does not implicate the ADA. The EEOC advises that if an employer wants to avoid raising an ADA issue, it may tell employees who receive the vaccine from a third party (like a pharmacy) to not provide any medical information as part of their proof.

• A request that an employee explain why they did not receive the vaccine is a disability-related inquiry. However, asking that employees provide an explanation as to why they did not get the vaccine would be a disability-related inquiry as it may elicit information about the employee's health condition. Accordingly, such inquiries can only be made if the employer can show that an employee who declines to provide such an explanation is a direct threat to themselves or others.

• Determining whether an unvaccinated employee is a direct threat in the workplace is a fact-specific question and may change depending on the working environment. The EEOC advises that employers should consider these four factors when determining if a direct threat exists because of the presence of an unvaccinated employee in the workplace:

• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur; and
• The imminence of the potential harm.

• The EEOC further noted that a finding of a direct threat would necessarily include the determination that an unvaccinated employee will expose others to the virus in the workplace.

• Even if an unvaccinated employee is a direct threat in the workplace, an employer must provide a reasonable accommodation if one exists. An employer's analysis does not end once it determines that an unvaccinated employee is a direct threat in the workplace. An employer must still engage in the interactive process with the employee to determine if there are any reasonable accommodations that could eliminate the direct threat. Whether an accommodation is "reasonable" will depend on the type of work performed. Health care employers, for example, can likely take the position that no accommodation is reasonable for employees who are involved in direct patient care - that is, that an unvaccinated employee is a direct threat to patients in the workplace. Employers outside health care, on the other hand, will need to consider if there are accommodations that can reasonably improve workplace safety, including requiring an unvaccinated employee to wear a mask or telework (effectively requiring the employee to continue with COVID-19 restrictions post-COVID). Requested accommodations can be denied if they would present an "undue hardship" to the employer. Whether accommodations are an "undue hardship" is a fact-specific analysis. It is evident from courts that have analyzed the issue that work environment, and the employee's personal medical history, play a role in the accommodation process. Health care employers will have a stronger justification for a no-exception vaccination policy. For other employers, it will be best to try to work with the employee in accommodating their request.

• Employers must also make reasonable accommodations for sincerely held religious beliefs. Mandating vaccines can also raise Title VII issues. Under Title VII, an employee who has a "sincerely held religious belief" may be exempt from a mandatory vaccination requirement. Employees need not necessarily ascribe their reasoning to a traditionally accepted religion to be found to have a sincere religious belief. However, even if an employee has a "sincerely held religious belief," an employer's obligation is to make reasonable accommodations. Thus, as with a disability-related accommodation, employers should take any religious exemption request seriously and engage in an interactive process with the objecting employee to determine if a reasonable accommodation can be met.

 

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