Partner Deena R. Merlen Provides Important Updates Regarding Workplace Policies on COVID-19 Vaccinations

It seems the ink is hardly dry on a posting about COVID-19 vaccination policies in the workplace when there is a further legal development or news to share.

In today’s news, the U.S. Equal Employment Opportunity Commission (EEOC) has just updated its COVID-19 technical assistance to address questions arising under the federal equal employment opportunity (EEO) laws.  The EEOC has also provided a new resource that may be helpful to job applicants and employees during the pandemic.

The new resource explains how federal employment discrimination laws provide rights that can help protect job applicants and employees during the COVID-19 pandemic, and focuses on such issues as harassment, recourse for those who are “high-risk” and need extra protection from getting sick, or those who need a modification of their employer’s COVID-19 safety requirements.

The COVID-19 technical assistance, as revised today, includes the following updates and clarifications, among others:

• Sections K.1 and K.2 provide that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  The EEOC reminds employers to “keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
• Important considerations in regard to employees with disabilities or sincerely held religious beliefs that may preclude vaccination are discussed in Sections K.5-K.11 and K.12. The EEOC also updated information regarding pregnancy and the COVID-19 vaccination in Section K.13.
• The EEOC also updated the technical assistance to address COVID-19 vaccine incentive programs.  As discussed in Sections K.16-K.21, federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (i.e., not the employer or its agent) in the community, such as a pharmacy, personal health care provider, or public clinic. However, as explained in Section K.4, if employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• As noted in Section K.17, in regard to COVID-19 vaccinations administered by the employer or its agent to the employees, employers may offer incentives for employees to get vaccinated only so long as such incentive (which includes both rewards and penalties) is not so substantial as to be coercive.  Also, because vaccinations administered by the employer or its agent would require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. (As explained in Section K.16, however, 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.)
• As noted in Section K.3, employers may provide 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. The updated technical assistance provides a helpful list of federal government resources available to those seeking more information about how to get vaccinated.

The EEOC’s publications discussed above are focused on the federal EEO laws.  As employers and employees navigate the return to work in the COVID-19 pandemic, it is essential to keep in mind that there are additional important federal, state and local laws that may bear on the employers and employees’ rights and obligations in regard to COVID-19 vaccination policies and other pandemic-related workplace matters, and that this is an area of rapid change and legal developments.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon in regard to particular legal matters. If you seek assistance with a particular employment law or labor law matter, please contact RPJ Partner Deena R. Merlen to discuss.