Navigating Employee Vaccination Policies & Anti-Discrimination Laws
Background
In December of 2020, the US Equal Employment Opportunity Commission (“EEOC”) published guidance suggesting that employers may be allowed to mandate COVID-19 vaccinations among employees. However, the matter remained vague until the EEOC published amended guidance on May 28, 2021, stating clearly that employers can in fact mandate employee vaccinations. This adjustment brought welcome news to employers as more employees are returning to on-site work amidst relaxing mask mandates and changing pandemic workplace safety rules.
Still, employers must tread carefully when implementing this guidance. The EEOC makes clear that its updated guidance does not overrule the laws of state and local authorities – some of which contradict the EEOC’s guidance or one another. [1] Employers should thus carefully review all state and local laws, consulting with counsel if it’s unclear which of the sometimes varying rules to follow.
Even when state and local regulations align with the new EEOC guidance, employers must proceed with caution to ensure compliance with federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). These laws offer important considerations for employers — whether they are considering requiring vaccination, incentivizing vaccination, or simply wondering if they can ask a job applicant about their vaccination status.
Mandatory Vaccine Policies for Employees
Under the ADA, employers must offer reasonable accommodations for employees whose disabilities prevent them from performing work duties or meeting certain work requirements. The EEOC’s guidance makes clear that this mandate also applies when it comes to the COVID-19 vaccine. Therefore, employers may not demand vaccination from employees whose disabilities preclude it. There are, however, some exceptions. Employers may still require compliance from such employees if 1) the unvaccinated employee would pose a “direct threat” to other employees or the safety of the workplace as a whole and 2) there is no possible reasonable accommodation — except one that places “significant difficulty or expense” on the employer. Under Title VII, employers must likewise provide reasonable accommodation to those employees who do not wish to be vaccinated because of their religious beliefs (so long as the accommodation only places a minimal cost or burden on business operations). [2]
If considering a mandatory vaccine policy, employers should also keep in mind that such a policy must not discriminate against any protected group (i.e. on the basis of race, gender, or citizenship status). This requirement might make certain mandatory vaccine programs untenable —given that certain protected groups face greater barriers to vaccine access — unless an employer were willing to handle the logistics and finances of providing the vaccine.
Incentivized Vaccine Policies for Employees
If employers are concerned about violating anti-discrimination laws with a mandatory vaccine program, the updated EEOC guidance clarifies that employers may also choose to incentivize employee vaccination. [3] However, there are more considerations if an employer is directly administering the vaccine or providing vaccination through a contractor. While incentives are still allowed in such cases, they cannot be so large as to feel coercive.
Vaccination Status and Privacy
According to the EEOC’s updated guidance, employers may ask employees to provide documentary proof of their vaccination status. However, employers must treat such documentation as a confidential medical record under the ADA and store it separately from regular personnel files.
When collecting information on employee vaccination status, covered California employers must also follow the guidelines of the California Consumer Privacy Act (“CCPA”) by providing a “notice at collection” — which discloses the nature of the information being gathered, and the purpose for which it will be used.
Job Applicants
While it might feel natural to ask job applicants about their vaccination status, employers must proceed with caution. The ADA generally prohibits disability-related inquiries during a job interview. Although the new EEOC guidance states that asking about vaccination status is not a disability-related inquiry, such a question could violate the ADA by pressuring an applicant to disclose disability-related information. For example, if a job applicant with a disability that precludes vaccination tells the interviewer she is not planning to be vaccinated, she may then feel pressured to disclose her disability by way of explanation.
Instead of asking about vaccination status during an interview, employers with a vaccine mandate might consider that the requirement be included in the job description. That description should note that an employee must be vaccinated by their first day, but that reasonable accommodations are available upon request.
Recommendations
• For many employers, it will be simpler to encourage rather than mandate vaccination. In any case, employers should consult counsel about any vaccination policies – from the most lax to the most strict – in order to ensure compliance with workplace safety laws, paid leave laws, and anti-discrimination laws alike.
• If instituting a mandatory vaccine policy, employers should make it explicitly clear that employees are entitled to request an accommodation. Likewise, employers should ensure supervisors are trained to recognize and respond to accommodation requests. This is especially important because employees do not have to mention the ADA or use the language of ‘reasonable accommodation’ to trigger the employer’s obligation to explore possible accommodations. Unless a supervisor is trained in recognizing an accommodation request, they may miss that the employee is asking for one.
[1] For example, Santa Clara County requires employers to complete “two rounds of ascertainment” regarding employee vaccination status, while Montana has made it illegal for businesses to require disclosure of vaccination status from its employees.
[2] The cost or burden does not need to be monetary. Courts have found that employers may decline to give an accommodation that would necessarily infringe on the job rights of other employees or impair workplace safety. Still, employers should note that there are often available accommodations that honor both an employee’s religious belief and ensure continued safety of the workplace.
[3] Note that according to the EEOC, incentives include “both rewards and penalties.”
Author: Diana Maier, Founding Partner & Penina Eilberg-Schwartz, Project Manager/Paralegal.
Please contact the team at Maier Law Group if we can help you evaluate or develop your employee vaccination policies. We invite you to reach out to us at info@maierlawgroup.com for more information.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.