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EEOC Updates Guidance on Employer Sponsored COVID-19 Vaccination Incentives and COVID-19 Employer Policies

October 19, 2021

Last week, the Equal Employment Opportunity Commission (the “EEOC”) updated its informal guidance on COVID-19 vaccination policies and employer sponsored vaccination incentive programs.  What follows is a brief summary.

Employer Sponsored Incentive Programs

As part of the EEOC’s guidance, employers are now permitted to offer unlimited incentives to their workers for voluntarily receiving a vaccination for COVID-19; provided the vaccination is given by a health care provider who is unaffiliated with the employer.   However, if the employer itself is administering the vaccine, caution must be taken as to the value of the incentive being offered so as not to run afoul of the Genetic Information Non-Discrimination Act (“GINA”) prohibitions and incentive caps.

Mandates and Accommodations

The EEOC confirmed an employer can require its employees to be vaccinated.  This policy comes with a carve out to allow for the reasonable accommodation provisions of Title VII relating to religion and pregnancy, and the Americans with Disabilities Act (the “ADA”).  If an employee seeks and obtains an exemption for a bona fide reason, the employer must ensure that the employee is not discriminated against as a result.  Accommodations employers may wish to consider include telework, job modifications and/or changes to work schedules or assignment.

Employer Provided Resources and Information

A concern for many employers surrounding COVID-19 testing, mandates and information sharing surrounds the possible violation of the ADA or GINA.  To help alleviate those concerns, the EEOC’s guidance allows for employers to share with their employees’ information about the COVID-19 vaccination to help raise awareness about the benefits of vaccination.  Employers are also permitted to provide (i) employees with access to medical providers who provide vaccinations at work, (ii) information on free/low-cost transportation resources to vaccination sites, and (iii) paid time off to get vaccinated.  The guidance reminds employers to provide employees who may wish to request an accommodation based on religion, disability, or pregnancy with contact information of a company representative.

Requesting Proof of Vaccination Status

The EEOC confirmed an employer’s request for documentation or similar confirmation of an employee’s vaccination status is not a disability-related inquiry under the ADA. However, if an employer makes such an inquiry and receives corresponding documentation from an employee, the employer must keep this information confidential and separate from the employee’s personal file.  This requirement is no different than the need to do the same for other medical related information of the employee.  It is important to note, if the employee provides the requested documentation from a third-party health care provider who is unaffiliated with the employer, then GINA is not at issue.

Brody and Associates will continue to provide updates on the EEOC’s position as it relates to COVID-19.  It is quite possible additional guidance will be provided in advance of or simultaneously with the implementation of President Biden’s “Path out of the Pandemic Plan” and the forthcoming OSHA Emergency Temporary Standard which shall require all employees working with employers with more than 100 employees to receive the COVID-19 vaccination or provide weekly negative test results.

The subject matter of COVID-19 posts is often very technical. It is also an evolving area of science and law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March 2020, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.