EEOC Issues New FAQs on COVID-19 Vaccine Programs & Incentives



On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) added new answers to frequently asked questions (FAQs) to its existing guidance on how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus (COVID-19) pandemic.


The agency also updated five of the FAQs from the existing guidance.


The new and updated FAQs clarify the types of programs employers may have to help ensure that their employees receive COVID-19 vaccinations. They also address the extent to which employers may require or provide incentives for employees or employees’ family members to receive vaccines. The new FAQs also provide expanded guidance on the types of information employers may request or require as part of their workplace vaccination policies and programs.


This update contains only the FAQs that were added or updated on May 28, 2021. Employers that are subject to the ADA should not only become familiar with these FAQs, but also review the EEOC’s full guidance, which was initially issued on March 18 and updated several times in 2020.


ACTION STEPS:

All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. Employers with 15 or more employees should also become familiar with and follow the guidance provided in all of the EEOC’s FAQs about ADA compliance. These and all smaller employers should ensure that they comply with state and local anti-discrimination laws as well.


HIGHLIGHTS:

Employer Vaccine Programs

The EEOC’s new FAQs clarify, among other things, that employers may:

  1. Require employees who will be physically entering the workplace to be vaccinated, as long as certain requirements are met;

  2. Offer to provide vaccinations to employees on a voluntary basis;

  3. Offer incentives for employees to receive COVID-19 vaccinations, as long as the incentives are not coercive;

  4. Offer to provide vaccinations to employees’ family members on a voluntary basis (but may not require or provide incentives for family members’ vaccinations).

Mandatory Vaccines and Reasonable Accommodations

Employers with mandatory vaccination programs must provide reasonable accommodations for individuals who refuse the vaccine due to disability, pregnancy or religion.



K. VaccinationsAs updated May 28, 2021


The availability of COVID-19 vaccinations raises questions under the federal equal employment opportunity (EEO) laws, including the ADA, the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (Title VII).


This section was originally issued on Dec. 16, 2020, and was clarified and supplemented on May 28, 2021. The May 2021 updates are consistent in substance with the original technical assistance and also address new subjects. (For example, see discussion of vaccine incentives under the ADA starting at K.16 and under GINA starting at K.18). On May 13, 2021, the CDC issued updated guidance for fully vaccinated individuals, exempting them from masking requirements “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” The EEOC is considering the impact of this CDC guidance on EEOC’s COVID-19 technical assistance provided to date.


The EEOC has received many inquiries from employers and employees about the type of authorization granted by the U.S. Department of Health and Human Services (HHS) Food and Drug Administration (FDA) for the administration of three COVID-19 vaccines. These three vaccines were granted Emergency Use Authorizations (EUA) by the FDA. It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach. Individuals seeking more information about the legal implications of EUA or the FDA approach to vaccines can visit the FDA’s EUA page. The EEOC’s jurisdiction is limited to the federal EEO laws as noted above.


Indeed, other federal, state and local laws and regulations govern COVID-19 vaccination of employees, including requirements for the federal government as an employer. The federal government as an employer is subject to the EEO laws. Federal departments and agencies should consult the Safer Federal Workforce Task Force for additional guidance on agency operations during the COVID-19 pandemic.


The EEOC questions and answers provided here only set forth applicable EEO legal standards, unless another source is expressly cited. Whether an employer meets the EEO standards will depend on the application of these standards to particular factual situations.


The technical assistance on vaccinations below was written to help employees and employers better understand how federal workplace discrimination laws apply during the COVID-19 pandemic caused by the SARS-CoV-2 virus and its variants. The technical assistance here is based on and consistent with the federal civil rights laws enforced by the EEOC and with EEOC regulations, guidance and technical assistance. Analysis of how it applies in any specific instance should be conducted on an individualized basis.


COVID-19 Vaccinations: EEOC Overview


K.1. (Added May 28, 2021) Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?


The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.


In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).


As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age or genetic information, unless there is a legitimate non-discriminatory reason.


K.2. (Added May 28, 2021) What are some examples of reasonable accommodations or modifi