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Labor Law: EEOC issues important updates on employer policies around the COVID-19 vaccine
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Labor Law

Labor Law: EEOC issues important updates on employer policies around the COVID-19 vaccine

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RTD Metro Business law columnist, Karen Michael.

The Equal Employment Opportunity Commission updated its COVID-19 technical assistance guidance in late May to provide clarity for employers on mandatory vaccinations, reasonable accommodations, requiring proof of vaccinations, and whether incentives to employees and/or family members to receive the COVID-19 vaccine are legal.

Here are some areas covered under the new guidance:

Mandatory vaccines:

  • The EEOC reiterated that federal equal employment opportunity laws do not prevent employers from requiring all workers physically entering the workplace to be vaccinated, subject to reasonable accommodations for religious beliefs, disabilities and potentially pregnancy.

The EEOC cautioned employers to make sure that their policies do not have a disparate impact on any demographic or create a vaccination requirement that treats employees differently based on a protected characteristic such as national origin, race and gender.

An employer is not required to return into the workplace an unvaccinated employee if that worker could pose a “direct threat” to the workplace.

This is likely the case in a nursing home, ICU or those working with a high-risk population. Employers must carefully assess the “direct threat” analysis under the Americans with Disabilities Act before making this determination.

Reasonable accommodations:

  • If a company requires vaccinations for employees physically entering the workplace, an employee with a disability or who has a sincerely held religious belief preventing vaccination must let the business know that he or she needs a reasonable accommodation, which may include an exemption from the vaccination requirement.

Thereafter, the company will need to engage in the interactive process to provide reasonable accommodation and/or assess the direct threat determination.

Reasonable accommodations for an unvaccinated employee entering the workplace may include wearing a face mask, working at a social distance from co-workers or nonemployees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework, or, as a final accommodation, reassignment.

The EEOC stated that, as a best practice, “before instituting a mandatory vaccination policy, employers should provide managers, supervisors and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.”

Fully vaccinated employees also may seek reasonable accommodations in the workplace, including those immune-comprised because, as the EEOC noted, the vaccine may not offer them the same measure of protection as other vaccinated individuals.

Companies cannot disclose that an employee is receiving a reasonable accommodation.

COVID-19 documentation:

  • While employers can collect documentation or other confirmation of COVID-19 vaccination, this documentation must remain confidential and stored separately from the employee’s personnel files, like all employee medical records.

Incentives:

  • Companies may provide employees and their family members “with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns,” the EEOC said.

It added that “under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, including time-off for vaccination.”

The amount of incentives — or penalties — may depend on whether the vaccination is mandatory, and whether the employer or its agent is administering the vaccine or a third party, such as a pharmacy.

An employer’s agent is defined as “an individual or entity having the authority to act on behalf of, or at the direction of, the employer.”

Employers can offer an incentive for employees receiving a vaccination administered by the employer or its agent so long as it is not so substantial as to be coercive.

The “coercive” limitation is removed when employers offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination “on their own from a third-party provider that is not their employer or an agent of their employer.”

Under federal discrimination laws, the employer should not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent.

A company can offer vaccinations and incentives to an employee’s family member for receiving the vaccine through a third party, but cannot require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.

The waters around COVID-19 vaccinations are uncharted and guidance is changing rapidly. Employers should review the guidance provided by the eeoc.gov and also continue to check for updates.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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