COVID-19 and ADA, Rehabilitation Act and other EEO laws


EEOC Updates Guidance Regarding COVID-19 Vaccination Incentives and Reasonable Accommodation

The United States Equal Employment Opportunity Commission (EEOC) has updated its guidance document “What You Need To Know About COVID-19 and ADA, Rehabilitation Act and Other Laws on the EEO ”on May 28, 2021, providing clear and welcome advice for employers on a number of vaccination issues. As employers grapple with decisions regarding the COVID-19 vaccine, recent guidance on the following should be considered.

Mandatory vaccination policies for employees physically entering the workplace

According to the EEOC, federal laws do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII (Religious Accommodation ) and ADA (facilities for disabled people) and disparate. impact considerations discussed below. It is important to note, however, that the updated guidelines do not address mandatory COVID-19 vaccination policies for remote workers.

At the same time, OSHA has taken steps to avoid dissuading workers from receiving COVID-19 vaccines. Under previous OSHA guidelines, if an employer required that employees be vaccinated as a condition of employment, any adverse reaction to the vaccine was considered work-related and potentially recordable in the employer’s OSHA 300 log. the severity of the reaction. This directive has been replaced with a statement that OSHA will not require employers to record worker side effects from COVID-19 vaccination until May 2022.

Reasonable accommodation

While employers have a mandatory COVID-19 vaccination policy, they must also comply with the ADA and Title VII “reasonable accommodation” provisions for employees who cannot receive the vaccine due to a disability or sincere religious beliefs. The updated guidelines offer some reasonable, practical, and non-exhaustive accommodation suggestions, including telecommuting, continued face mask wear, social distancing, shift changes, periodic COVID-19 testing, and / or reassignment. The guidelines also state that employers may also need to accommodate employees who are not vaccinated due to pregnancy.

Employers are cautioned not to overlook the reasonable accommodation needs of fully immunized employees, including those with underlying health conditions who are at increased risk of serious illness from COVID-19. The EEOC advises employers to follow the ADA’s interactive accommodation process, which “typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is necessary”.

Disparate impact

The EEOC guidelines remind employers to keep in mind that some individuals or demographic groups may face greater barriers than others in receiving a COVID-19 vaccination, and as a result, some employees may be more likely to be adversely affected by a vaccination requirement. Employers with mandatory vaccination policies should assess the extent to which their policy may disproportionately exclude employees from protected categories, including race, color, national origin and age.

Vaccine incentives

The updated guidelines confirm that employers can offer vaccination incentives to employees who voluntarily provide documentation confirming that they have received the vaccine themselves at a pharmacy, public health facility or other health care provider. health in the community. An employer may also offer incentives to employees to voluntarily receive a vaccination administered by the employer or its agent, but these incentives may not be strong enough to be coercive. The rationale for the EEOC is that “[b]Since vaccinations require employees to answer disability-related screening questions prior to vaccination, there could be a huge incentive for employees to feel pressured to disclose protected health information. Unfortunately, the EEOC did not offer any examples, monetary or otherwise, of incentives that could be deemed acceptable or coercive.

Employers who decide to offer vaccine incentives should also consider the Genetic Information Non-Discrimination Act (“GINA”). The EEOC states that employers “may offer an inducement to employees to provide documents or other confirmation from a third party not acting on behalf of the employer, such as a pharmacy or health service, that employees or their family members were vaccinated “without violating GINA. However, the EEOC believes that under the GINA, an employer cannot offer an incentive to an employee in exchange for the vaccination of an employee’s family member by the employer or its agent, because it “would require the vaccinator to ask the family member medical screening questions about the vaccination, which include medical questions about the family member.”

Employer rights to information and confidentiality

Employers can ask employees to provide confirmation of their COVID-19 vaccination status (for example, an immunization record or pharmacy records). If employers choose to obtain immunization information from their employees, that information should be treated as confidential under the ADA and kept separate from employee personal files.

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