The EEOC Issues Expanded COVID-19 Technical Assistance
The new guidance reiterates that the federal anti-discrimination laws do not preclude employers from requiring employees entering the workplace to be vaccinated.
Employers, however, must reasonably accommodate employees who decline to get vaccinated due to a disability or a sincerely held religious belief, practice, or observance. Those accommodations might include requiring unvaccinated employees to wear a facemask, work a safe distance from others, work a modified shift, submit to periodic COVID-19 tests, work remotely, or accept reassignment to positions that will expose them to fewer people.
The new guidance also points out that employer vaccination mandates may trigger adverse impact issues.
As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on – or disproportionately excludes – employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employees should keep in mind that because some individuals or demographic groups may face greater barriers to getting vaccinated than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
If an employer requires employees to get a COVID-19 vaccination from the employer or its agent, some pre-vaccination screening questions also could be problematic. That’s because those questions, according to the EEOC, likely will elicit disability-related information. Thus, under the ADA, the questions must be job-related and consistent with business necessity.
To meet that standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee or others in the workplace. That entails a complex inquiry.
A ‘direct threat’ is a ‘significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. . . . This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.
To determine if an employee who is not vaccinated due to a disability poses a ‘direct threat’ in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.
If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.
According to the EEOC, employers can avoid the direct threat issue by offering to vaccinate employees voluntarily, meaning that employees may choose whether to get the vaccine from the employer or its agent.
Also, explains the EEOC, employers can avoid the direct threat issue by (1) allowing employees to obtain their COVI-19 vaccination from an independent third party, such as a pharmacy, personal healthcare provider, or public clinic; and (2) asking the employees for written confirmation that they have been vaccinated. That approach works, according to the EEOC, because asking an employee to confirm that he or she has been vaccinated is not a disability-related inquiry.
Employers may, according to the EEOC, offer employees incentives to encourage them to confirm, voluntarily, that an independent third party has vaccinated them. Says the EEOC,
Requesting documentation or other confirmation that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA. Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.
The EEOC also okays employer incentives to encourage employees to allow the employer or its agent to voluntarily vaccinate them, if the incentive is not so substantial as to be coercive. Why? “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.”
The EEOC’s expanded technical assistance, like its previous guidance, only addresses COVID-19 issues under the federal anti-discrimination law. Other federal, state, and local laws also may come into play. So, employers should make sure that their policies satisfy the full range of applicable legal requirements.