The COVID-19 vaccine has left employers with a multitude of questions since the vaccine rollout began earlier this year. Employers have struggled to find definitive answers for questions concerning anti-discrimination laws like the Americans with Disabilities Act (ACA) and the Genetic Information Nondiscrimination Act (GINA).
On May 28, the Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws resource. This resource serves to answer several critically important compliance-related questions that employers may have. The law offices of Shawe and Rosenthal provide a helpful, detailed summary of this new guidance.
Employers Can Still Mandate the COVID-19 Vaccine
The new guidance states that employers can legally mandate the COVID-19 vaccine for their workforce. The EEOC has maintained this position since the initial vaccine rollout began.
While employers have the right to mandate vaccinations, they must also make reasonable accommodations for employees with valid religious and medical restrictions. Determinations for accommodation should be made on a case-by-case basis, and it is the employee’s responsibility to submit these requests. Employers cannot disclose who is receiving these accommodations.
Employers are not obligated to excuse a vaccine mandate for any employee considered a “direct threat” to the workforce. An employee who is a “direct threat” poses a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodations. Fully vaccinated employees, depending on conditions, may still require reasonable accommodations to protect themselves and others if they are a “direct threat.”
The potential disparate impact (greater impact) of a vaccine mandate is a new topic the EEOC covered in its guidelines. This topic includes the impacts of vaccines based on race, color, sex, religion or national origin. Because some demographic groups may face more significant obstacles to getting vaccinated, employees are protected from being penalized for these circumstances.
Potential accommodations include:
- Social distancing from coworkers or non-employees
- Working a modified shift
- Periodic tests for COVID-19
- Being reassigned to another position
The EEOC laid out certain restrictions that apply if an employer administers its vaccinations (or retains a third party to do so).
Vaccinations require certain screening questions:
- If the employer is mandating the vaccine, these screening questions are considered medical inquiries that must be job-related and meet business necessity standards under the ADA. Standard screening questions do not implicate GINA.
- If the employer voluntarily provides the vaccine, the screening questions are not subject to the ADA’s job-related and business necessity standards.
Any screening question responses are confidential medical information. If vaccines are obtained from a provider within the community, the ADA and GINA do not apply because the employee or agent affiliated with the employer is not asking screening questions.
Employers may offer vaccines to certain employee groups but should exercise extreme caution to not discriminate based on any protected characteristic.
The EEOC makes it clear; employers may encourage their employees to receive the vaccine. The EEOC provides several resources for employers to aid in this encouragement, such as a communications toolkit and transportation assistance. The CDC also offers a hotline for non-English speaking employees to receive assistance.
The EEOC also recommends providing paid leave for employees to receive the vaccine, which can result in a tax credit for certain businesses through the American Rescue Plan.
What incentives to offer and who receives them for being vaccinated has been a hot topic amongst employers, often with a lack of legal guidance available to make these decisions. The EEOC has provided new guidance to help tackle this issue.
- Employers can provide a limited incentive to employees through an employer-administrated program. An employer-administrated program involves screening questions, so the incentives cannot be large because they can appear to pressure employees to reveal medical information under the ADA. The screening questions do not require genetic information, so GINA does not apply.
- Employers cannot provide incentives to employees for family members receiving the vaccine through an employer-administered program.
- Employers can provide family members with the opportunity to become vaccinated through an employer-administered program without incentives to the employee if:
- Vaccinations are not mandatory, and the employee is not punished for family members who choose not to be vaccinated.
- Medical information obtained from family members during the screening process is kept confidential and only used for providing the vaccination.
- Written authorization from the employee’s family member is received before the family member answers screening questions
- Employers can provide unlimited incentives to employees who were vaccinated through a community provider (i.e., local health department, pharmacy, etc.).
As vaccination efforts continue, compliance-related questions will only continue to arise. Talk to a trusted RCM&D advisor today for more on the new EEOC guidelines and with any questions regarding workforce vaccination efforts.
We at RCM&D are not lawyers, but insurance brokers and consultants. Information provided is for general illustration and/or informational purposes only and should not be construed as legal advice.