EEOC Issues Guidance on Workplace Policies for COVID-19 Vaccinations

By Richard S. Johnson, J.D., executive vice president, PartnerSource

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued technical assistance questions and answers that answered (or updated) common employer questions related to the COVID-19 vaccination practices in the workplace. This guidance came only two weeks after the Centers for Disease Control and Prevention (CDC) introduced updated guidance that exempted fully vaccinated persons from most mask-wearing requirements.

As of June 2021, the federal government is providing COVID-19 vaccines at no cost to all persons age 12 and older. With this increased vaccination access--coupled with the recent CDC exemptions for fully vaccinated persons--many employers are now very open to eliminating or reducing workplace mask requirements and other COVID-19 workplace accommodations. To help employers with this task, the new EEOC guidance answers some key questions, such as:

  1. Can an employer require all employees to be vaccinated for COVID-19 before physically entering the workplace?

Yes. However, the EEOC notes that an employer must provide reasonable accommodations for employees who--because of (1) a disability (such as pregnancy-related conditions or historic reactions to vaccines), or (2) a sincerely held religious belief, practice or observance--do not get a COVID-19 vaccination.

The EEOC also notes that employers should also consider whether requiring COVID-19 vaccinations could create a discriminatory impact on certain persons or demographic groups that may face greater barriers to receiving a COVID-19 vaccination.

  1. What are some examples of reasonable accommodations for employees who do not get COVID-19 vaccinations?

The EEOC provides specific examples of reasonable accommodations for unvaccinated employees, such as (1) continuing to wear a face mask, (2) social distancing from coworkers, (3) teleworking or modified workshifts, (4) getting periodic testing for COVID-19, and (5) reassignment.

Like any other disability covered under the Americans with Disabilities Act (ADA), the employer can refuse an accommodation request if it creates an "undue hardship" on the employer – which, historically, has been a high standard for the employer to meet.

  1. Can the employer require employees to provide medical proof of a COVID-19 vaccination?

Yes. An employer can request employees to provide documentation proving their vaccination status (such as a vaccination card) as long as the employer keeps the information confidential and stored separately from the employee’s personnel files. The EEOC states that asking an employee to confirm or document a COVID-19 vaccination is not a "disability-based inquiry."

  1. Does employer use of COVID-19 screening questions or requiring medical proof of COVID-19 vaccinations violate the Genetic Information Nondiscrimination Act (GINA)?

No, as long as the requests do not include questions about, or request documentation for, the employee’s genetic information (e.g., "Does your family have a history of reactions to vaccines?"). Because GINA does not prevent an employee’s own health care provider from asking questions about genetic information, employers should consider the value of having employees obtain vaccines from outside third parties rather than onsite vaccine programs with employees administering vaccines.

  1. Can employers voluntarily encourage/incentivize employees to obtain COVID-19 vaccinations?

Yes. Employers can provide employees with information to educate them about COVID-19 vaccinations, including raising awareness about the benefits of vaccines and answering common questions. Employers can also use incentives (both rewards and penalties) as long as the incentives are not so substantial as to be "coercive" and do not request genetic information.

  1. Can a fully vaccinated employee request a reasonable accommodation if he/she has concerns of still being a heightened risk for severe illness from COVID-19?

Yes. The EEOC notes that employers should treat this request in the same manner as any other ADA reasonable accommodation request. For example, the employer could request medical documentation verifying that an employee is immunocompromised and could still be a heightened risk for COVID-19 illness.

For Texas Option programs, employers should also consider state and local laws that could affect applying COVID-19 vaccination policies to Texas employees. For example, on April 5, 2021, Governor Abbott issued an executive order that prohibits many public and private employers in Texas from requiring consumers to provide COVID-19 vaccination documentation. However, this prohibition does not appear to prevent employers from requiring COVID-19 vaccination documentation from its employees in the context of their employment.

At this point, employers are taking a wide variety of approaches to COVID-19 vaccination policies depending upon their industry and risk tolerance. A few employers have developed mandatory vaccination programs, but have already been met with litigation. Other employers are hesitant to make any changes until the federal government provides additional guidance for HIPAA privacy laws and OSHA safety laws (which the EEOC does not oversee).

Most employers appear to be encouraging employees to voluntarily obtain a COVID-19 vaccination, and are providing education (or incentives) to the employees. These employers then validate employee vaccinations either by having the employee complete an attestation (affidavit, acknowledgment) or by providing medical documentation of vaccination (or both).

For Texas Option programs, the EEOC guidance leaves many questions unanswered, such as:

  • What information can HR/Benefits provide to front-line managers with respect to employee vaccination status?
  • What policies and practices can employers use to enforce compliance with COVID-19 vaccination requirements?
  • Can employees who have had COVID-19 provide proof of antibodies (or undergo periodic antibody tests) as a reasonable accommodation?
  • For defending potential negligence liability cases involving COVID-19 illnesses, what level of compliance with state and federal laws will satisfy an employer’s duty to provide a reasonably safe work environment?

PartnerSource will continue to monitor COVID-19 employment and work injury issues as they develop. For additional information, please contact your PartnerSource team leader or claims director.