EEOC greenlights coronavirus vaccine requirements, incentives - with some limits

Published May 28, 2021 - HR Dive
Ryan Golden, Reporter

Dive Brief:

• Federal equal employment opportunity laws do not prohibit policies requiring that all employees who physically enter a workplace receive a COVID-19 vaccination, so long as such policies comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act as well as other applicable laws, according to technical assistance from the U.S. Equal Employment Opportunity Commission updated May 28.
• Title VII and the ADA require employers to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer's business, EEOC said. Employers with such a requirement also may need to respond to allegations that the requirement has a disparate impact on, or disproportionately excludes, an employee based on protected characteristics including age, race, color, religion, sex and national origin.
• Employers also may offer incentives to employees to voluntarily show documentation or confirmation that they have received a COVID-19 vaccine, but the agency outlined some limits in the event that employers are incentivizing employees to voluntarily receive a vaccine administered by an employer or its agent. 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.

Dive Insight:

The long-awaited document may answer some of the questions employers have regarding COVID-19 vaccination requirements, but other areas may be less certain.

Take, for example, the issue of incentives. Employers, per the document, may offer incentives to employees to voluntarily receive a vaccine, whether the employee receives the vaccine on their own from a pharmacy, health department or community health partner, or whether the employee receives a vaccine administered by the employer or an agent of the employer.

In the latter case, however, such an incentive may only be offered under the ADA if it "is not so substantial as to be coercive," EEOC said; "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."

That limitation does not apply to incentives offered to employees to voluntarily provide documentation or other confirmation that they have received a vaccine from a third-party provider that is not an employer or an agent of their employer, per EEOC. For employers incentivizing shots they offer either themselves or through their agents, there may be uncertainty as to what constitutes an incentive that is not so substantial as to be coercive.

"This is a situation in which [EEOC] completely ducked the question," said Barry Hartstein, shareholder at Littler Mendelson and co-chair of the firm's EEO and diversity practice group, noting the distinction between financial incentives and more general incentives, such as time off to receive a vaccination.

EEOC's document also does not address concerns about the fact that currently available COVID-19 vaccinations have been made available under the Food and Drug Administration's Emergency Use Authorization, which is notable because some organizations have argued against requiring the vaccine "because it's only been issued under the Emergency Use Authorization," Hartstein said.

In addition to the section of its technical assistance stating that employers need to respond to allegations that a vaccination requirement may disparately impact or disproportionately exclude an employee or group of employees, EEOC noted that employers "should 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."

This and other sections of the updated document could effectively serve as a word of caution to employers, Hartstein said; "It was a gentle, or not so gentle, reminder that neutral policies, on their face, that have a disparate impact may be subject to scrutiny."

To the extent that employers are making a distinction between vaccinated and unvaccinated employees, Hartstein said employers may need to be careful to ensure that those who choose not to be vaccinated are not treated in a discriminatory manner.

"The updates should reassure and help guide employers seeking to mandate or encourage employee vaccination in accordance with their obligations under federal law while further clarifying confidentiality requirements for vaccine documentation," Pierce Blue, senior attorney at Morgan Lewis, said in an email to HR Dive. "This continues to be a developing area of law, however, and we advise employers to reach out to counsel for guidance on specific questions."