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EEOC Issues Updated FAQs Relating to COVID-19 Pandemic

On October 13, 2021, the Equal Employment Opportunity Commission (EEOC) once again issued updated FAQs concerning the application of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA), among others, to issues arising out of the COVID-19 pandemic. 
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A link to the FAQs can be found here. Each of the updates concerns employer mandates, inquiries, and incentives relating to the COVID-19 vaccine. Specifically, the updated FAQs provide the following guidance:

Mandating Vaccination

Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on -or disproportionately excludes - certain employees. (FAQ K.1)

Encouraging Vaccination

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. Employers also may work with local public health authorities, medical providers, or pharmacies to make vaccinations available for unvaccinated workers in the workplace. The CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about COVID-19 vaccines. Although originally written for essential workers and employers, it is useful for all employees and employers. Additionally, employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant. (FAQ K.3)

Confidentiality of Vaccination Information

The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination to the employer, this information, like all employee medical information, must be kept confidential and stored separately from employee personnel files under the ADA. (FAQ K.4)  

Documentation of Vaccination Status

When an employer asks employees whether they have been vaccinated, the employer is not asking a question that is likely to disclose the existence of a disability. There are other reasons an employee may not want to provide documentation or other confirmation of vaccine status besides having a disability. Therefore, requesting documentation or other confirmation of Covid-19 vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about making such inquiries do not apply. (FAQ K.9) 

Employers must be careful not to probe for information from employees who have not been vaccinated because this may result in disability-related inquiries, which are prohibited under the ADA. Employers may seek limited information from employees who refuse to be vaccinated due to disability-related concerns about the vaccine.

Additionally, an employer requiring an employee to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician, a pharmacy, or a public health department, is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA. (FAQ K.15)

Pregnancy and Vaccination

CDC recommends COVID-19 vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future. Despite these recommendations, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement. If an employee seeks an exemption from a vaccination requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similarly situated in their ability or inability to work. (FAQ K.13)

Vaccination Incentives

The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination or provide confirmation of vaccination if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply. The value of the incentive must not be so substantial as to be coercive. (FAQ K.16)
 
Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a large incentive could make employees feel pressured to disclose protected medical information to their employers or their agents. (FAQ K.17)

Note, however, GINA does not limit the incentives an employer may offer to employees to encourage them or their family members to get a COVID-19 vaccine or provide confirmation of vaccination if the health care provider administering the vaccine is not the employer or its agent. (FAQ K.19)

Arent Fox continues to advise clients on vaccine and employer mandates surrounding the COVID-19 pandemic. For questions, please contact one of the authors or the Arent Fox professional who usually handles your matters.

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