By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C.
More and more people in the United States are getting vaccinated for COVID-19, which means the workplace, like every place else, is changing. All 6 of the New England states (including New Hampshire) have already met President Biden’s goal that 70% of the adult population have at least one shot by July 4th. This is good news from a public health standpoint, because COVID cases are declining while vaccination rates increase. It is also good news from an economic perspective, as states and businesses alike remove pandemic-related restrictions and move closer to pre-pandemic operations. But increased vaccinations also trigger new questions about what employers must do to comply with applicable workplace laws.
The Equal Employment Opportunity Commission is the agency responsible for enforcing Federal employment laws like the Americans with Disabilities Act and Title VII which prohibits employment discrimination. During the pandemic, the EEOC has published a series of updated COVID-19 technical assistance guidance in the form of questions and answers. On May 28, 2021, the EEOC updated its COVID-19 guidance once again, this time to address some of the implications of vaccinations. The full guidance, can be found here. Briefly, the following sets out some important highlights:
Previously, the EEOC said that employers were allowed to require employees physically entering the workplace to be vaccinated for COVID-19 if such requirement was business-related and employers provided reasonable accommodations to employees who decline vaccines because of a disability or religious reason. Once an employer is on notice that an employee’s sincerely held religious belief or disability prevents the employee from getting a COVID vaccine, however, the employer must provide a reasonable accommodation unless it would pose an undue hardship.
This remains the rule, but now the EEOC has confirmed that an employee’s vaccine status is confidential medical information under the ADA (although it may not be under HIPAA). This means that while Federal EEO laws do not prevent employers from requiring employees to provide proof of COVID vaccination, such proof cannot be disclosed to third parties. Moreover, proof of vaccination status and other documentation must be maintained as confidential, saved in a file separate from the personnel file.
The EEOC also clarified a number of other matters, including that:
· Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party, such as a pharmacy, personal health care provider, or public clinic. But again, if employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
· Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Such coercion would likely be found if an employer administers the vaccines itself (as opposed to employees receiving it from an independent third party, i.e., a pharmacy or doctor) and offers a “very large” financial incentive that might cause employees to feel pressure to disclose protected medical information during the vaccine screening questions.
· Employers cannot offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer, as this would violate the Genetic Information Nondiscrimination Act (“GINA”).
· Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination and may also offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive.
· If employers choose to adopt vaccination requirements, they must administer and enforce it on a non-discriminatory basis, keeping in mind that some demographic groups may face greater barriers to receiving a COVID-19 vaccination, making these employees more likely to be negatively impacted by a vaccination requirement (which might be evidence of discrimination).
The EEOC also posted a new resource targeted to job applicants and employees which explains in simple terms how federal employment discrimination laws protect workers during the pandemic. This resource reminds employees that an employer cannot stop an employee from working solely because that employee might be older, or pregnant, or have a disability, or required take care of someone with a disability. But the new resource also clarifies that an employer can make an employee stay home if the employee has COVID-19 and is currently infectious. The EEOC’s new notice can be found here.
Importantly, the EEOC has noted that these latest updates were prepared prior to the CDC’s May 13, 2021 guidance and health recommendations for fully vaccinated people. Additional updates may also be forthcoming as a result of these and other CDC guidance changes. Remember, too, that the EEOC technical assistance answers questions only with regard to EEO laws. State and local laws may well provide more protective rights to employees. For all these reasons, business cannot become complacent with current rules and protocols. Business should keep watching for developments and contact legal counsel, as needed, to address specific questions or concerns they may face in light of the particular circumstances of their workplaces
Vrountas, Ayer & Chandler, P.C.
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