Beyond Religious Accommodations – What Else Is New In The EEOC’s COVID-19 Vaccine Guidance!

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The Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, on October 13, 2021, to address vaccination developments and clarify certain issues. (On October 25, 2021, it also added a new section on Religious Accommodations, as separately discussed in our E-lert). While some of the October 13 changes are non-substantial, the following may be of interest to employers:

  • With regard to encouraging employees and their family members to become vaccinated, the EEOC has added that employers may work with local public health authorities, medical providers, or pharmacies to make vaccinations available in the workplace.
  • Because employees with disabilities or disabled family members may require extra support to obtain a vaccination, the EEOC has added information about the HHS/Administration for Community Living’s Disability Information and Assistance Line, 888-677-1199, available from 9 a.m. to 8 p.m. Eastern Standard Time, M-F.
  • The EEOC now also suggests that employers should provide contact information for a management representative who employees may contact to request a religious or medical accommodation or ensure non-discrimination for pregnant employees.
  • The Guidance now reflects the CDC recommendation of vaccinations for those who are pregnant, breastfeeding, trying to get pregnant now, or planning to get pregnant in the future. The EEOC continues nonetheless to reiterate that individuals seeking an exemption from a vaccine requirement due to these conditions should be treated the same as others who are similar in their ability or inability to work, in order to avoid disparate treatment claims under Title VII.
  • One Q&A has been rephrased to make clear that employers may, in fact, inquire about and/or request documentation or other confirmation that an employee has obtained a COVID-19 vaccination.
  • The EEOC clarifies that no genetic information is being requested, and therefore the Genetic Information Nondiscrimination Act is not implicated, when an employer asks an employee for confirmation of vaccination by a health care provider unaffiliated with the employer (e.g. employee’s personal physician or other health care provider, pharmacy, or public health department).
  • The EEOC had previously stated that employers may provide incentives to employees to voluntarily provide confirmation of vaccination by a third-party provider, and now asserts that the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act do not limit the value of such incentives, as long as the vaccine provider is not affiliated with the employer.
  • On the flip side, if the vaccine is being administered by the employer or its agent, the EEOC clarifies that there are limits on the value of any incentive – which includes both rewards and penalties – offered to employees. The EEOC reiterates that, under the ADA, the value of the incentive must not be so substantial as to be coercive. Such employer-run programs involve the employer or their agent asking screening questions. Under the ADA, the incentives cannot be so large as to pressure employees to reveal their medical information in response. (The screening questions do not require genetic information, so GINA does not apply.)