On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance explaining when employers can offer incentives to employees to (1) voluntarily receive a COVID-19 vaccine administered by an employer; or (2) provide COVID-19 vaccination documentation without violating the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The guidance answers questions related to who employers can offer incentives to and how they can do it. The key takeaway from the EEOC’s new guidance is that employers can offer incentives to their employees to voluntarily provide COVID-19 vaccination documentation or receive an employer administered COVID-19 vaccine- with some limitations.
Below is a summary of the questions and answers provided by the EEOC:
- Can employers offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by an employer or its agent under the ADA and GINA?
- Yes, employers can offer incentives to employees for voluntarily receiving a COVID-19 vaccine administered by them or their agents. Since the current pre-vaccination medical screening questions do not ask about genetic information, GINA is not implicated.
- But, there is a catch under the ADA – the incentive, including any reward for getting vaccinated or any penalty for not getting vaccinated, cannot be so substantial as to be coercive so the employee does not feel pressured to disclose protected medical information under the ADA.
- Can employers offer incentives to employees for voluntarily documenting that they received a COVID-19 vaccination from a third party under the ADA?
- Yes, employers can offer incentives to employees for documenting receipt of a COVID-19 vaccination from a third party under the ADA because asking about vaccination status is not a disability-related inquiry under the ADA.
- Unlike employer-administered vaccinations, there is no limitation on the incentives employers can offer to employees to confirm that they received a COVID-19 vaccination.
- Can employers offer incentives to employees for voluntarily providing documentation that they or their family members received a COVID-19 vaccination from a third party under GINA?
- Yes. Under GINA, this is allowed because the fact that someone received a vaccination is not an unlawful request for genetic information.
- Can employers offer incentives to employees for their family members to receive a COVID-19 vaccination administered by an employer or its agent?
- No. Under GINA, employers cannot offer incentives to employees in exchange for their family members receiving a COVID-19 vaccination administered by an employer or its agent. The EEOC guidance explains that doing so would lead to employers receiving family history information of the employee by asking the medical screening questions of their family members. However, employers can offer employees’ family members the opportunity to get vaccinated through the employers’ vaccination administration without offering incentives. Under GINA, when doing so, employers need to make sure that they obtain prior, knowing, voluntary, and written authorization from the family members before asking them about their medical conditions. Any medical information received from the family member must be kept confidential and not be used for any other purpose other than providing the vaccination.
If employers offer incentives to their employees under the EEOC’s new guidance, the COVID-19 vaccination information they receive as a result is still confidential. So, even if employees voluntary disclose the COVID-19 vaccination status of themselves or their family members, employers must keep this information private, confidential, and separate from the employees’ personnel files.
For more information, contact Nicole at 301-657-0744 or email@example.com.
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to address how a COVID-19 vaccine interacts with the equal employment opportunity laws enforced by EEOC. We are likely months away from pharmaceutical companies making the vaccine generally available to the public. But the EEOC guidance is a good resource for employers thinking through whether to institute a mandatory COVID-19 vaccine policy when that day comes.
EEOC Provides a Framework for Mandatory Vaccine Programs
There are three key takeaways from the guidance. First, a policy mandating that employees receive the COVID-19 vaccine is possible provided disability and religious accommodation requests are carefully evaluated. Second, the pre-screening questions that must be asked before a vaccine is administered will likely compel many employers considering a mandatory program to institute a voluntary one instead or to require employees to receive the vaccine elsewhere. Finally, the COVID-19 situation in the country may change dramatically by the time a vaccine is widely available, which could substantially alter EEOC’s guidance. Employers should consider the guidance as they plan but continue to monitor the issue before finalizing any vaccine policies.
EEOC Answers Common Questions Employers Are Asking About Whether To Mandate A Vaccine
The updated EEOC guidance answers a series of questions related to how a mandatory vaccine policy interacts with equal employment opportunity laws. Below is a summary of the questions and answers provided by EEOC.
- Is an employer administering a COVID-19 vaccine, directly or through a vendor hired by the employer, performing a medical examination under the Americans with Disabilities Act (“ADA”)?
- Answer: No, with a catch. A medical examination under the ADA is a “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” While administering the vaccine is not a medical test, pre-screening questions would likely uncover underlying physical impairments and constitute a medical examination under the ADA. Under the ADA, employers can perform medical examinations only if they are “job-related and consistent with business necessity.” To meet this standard, employers would need a reasonable basis, based on objective evidence, to conclude an employee that does not receive the vaccine because of a refusal to answer the pre-screening questions poses a direct threat to the health or safety of the employee or others. COVID-19 conditions on the ground at the time of the mandatory program would dictate whether an employer could meet this standard.
- The EEOC guidance identifies two ways around this issue. First, an employer could make the program voluntary instead of mandatory. The pre-screening questions do not need to satisfy the job-related and consistent with business necessity standard if the vaccine program is truly voluntary. Second, an employer could mandate employees receive the vaccine from third parties not connected to the employer. Under such a framework, since the third party would ask the pre-screening questions and not the employer, the employer need not satisfy the job-related and consistent with business necessity standard of the ADA. An employer may require an employee to provide proof of having received the vaccine without implicating the ADA so long as the employer makes clear the proof should not disclose underlying physical or mental impairments.
- If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a disability?
- Answer: The employer must perform an individualized assessment under the ADA to determine whether the unvaccinated employee poses a direct threat to the workplace because of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In analyzing this question, four factors should be considered: (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. Assuming a direct threat is found, the employer could only exclude the employee if “there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” If an employer finds that there is no way to provide a reasonable accommodation, the employer can bar the employee from the workplace but cannot necessarily terminate. Before terminating, the employer would need to determine whether other accommodations are available. Potential accommodations to consider are remote work, paid leave, or an unpaid leave of absence.
- If an employer institutes a mandatory vaccine policy, how must it respond if an employee refuses because of a sincerely held religious belief?
- Answer: The employer should assume the religious belief is sincerely held and provide a reasonable accommodation to its mandatory vaccine program for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. The undue hardship analysis under Title VII asks whether the accommodation has more than a de minimis cost or burden on the employer. In rare circumstances, an employer having an objective basis to question the nature of the religious belief or the employee’s sincerity in that belief can ask for further information. If the employer cannot provide an accommodation because of undue burden, it can bar the employee from the workplace, but must consider whether alternative accommodations would allow the employee to remain employed without entering the workplace.
- Is the Genetic Information Nondiscrimination Act (“GINA”) implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
- Answer: No, with a catch. Title II of GINA prohibits employers from (1) using genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquiring genetic information except in six narrow circumstances, or (3) disclosing genetic information except in six narrow circumstances. Administering the vaccine or requiring proof that an employee received one does not implicate GINA because neither involves “the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information as defined by the statute.”
- The pre-screening questions, however, may implicate GINA. The pre-screening questions for a publicly available COVID-19 vaccine are not clear. If those questions ask for any of the following they would implicate GINA:
- Information about an individual’s genetic tests;
- Information about the genetic tests of a family member;
- Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
- Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
- Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.
- If the pre-screening questions ask for this information, EEOC advises it would be wise for employers implementing a mandatory program not to administer the vaccine directly or through a third-party vendor but to require employers to obtain the vaccine elsewhere. When asking for proof of vaccination, the employer should make clear employees are not to provide GINA related information. Such a warning protects an employer from liability if the employee provides GINA protected information along with any proof of vaccine receipt.
For more information, contact Michael at 301-657-0740 or firstname.lastname@example.org.