Below are key takeaways from the EEOC’s May 28 guidance.
Resolving an issue that has given rise to considerable uncertainty, the revised FAQs provide that employers who wish to encourage, rather than mandate, COVID-19 vaccines may incentivize their employees to be vaccinated, although limitations apply when the employer (or its agent) administers the vaccine.
Employers may offer unlimited incentives for employees to present proof that they have been vaccinated through third parties such as a government vaccination site, doctor, or pharmacy. The FAQs do not give examples of incentives, however, monetary incentives (such as bonuses or the opportunity to enter a lottery for a larger cash prize) and additional paid time off are options that some employers have already implemented.
When the employer administers the vaccine itself or contracts with a vendor to do so, incentives for such employer-provided vaccinations are permissible only if they are not “so substantial as to be coercive.” In other words, the incentive cannot be so large that it renders the employer’s voluntary vaccination program effectively involuntary. The FAQs do not elaborate on what would be considered “coercive.” As a result, employers who wish to offer incentives should consider requiring employees to provide proof of vaccination from an independent source rather than administering vaccines itself or providing them through a vendor.
An employer may offer an employee’s family member the opportunity to be vaccinated if no incentive is offered.
Employers may also encourage vaccination through other means, such as educating their employees about COVID-19 vaccines, raising awareness of the benefits of vaccination, addressing common questions and concerns, and providing transportation to vaccination sites. The FAQs provide links to federal resources about getting vaccinated that employers can share with employees.
Vaccine Status Inquiries
The FAQs confirm that employers may ask employees whether they have received a COVID-19 vaccination, and may require proof of vaccination, without running afoul of federal equal employment opportunity (EEO) laws. Employers may not, however, ask follow-up questions (e.g., “Why are you not vaccinated?”) that could elicit disability-related information or genetic information, including information about the employee’s family medical history.
Although employers may ask about vaccination status, the EEOC emphasizes that employee vaccine information is confidential and, like medical information, must be stored securely and separately from employees’ personnel files. This means that managers and supervisors ordinarily should not be told about an individual employee’s vaccination status.
Mandatory Vaccine Policies
Consistent with prior guidance, the FAQs confirm that under the federal EEO laws, employers may require all employees to be vaccinated to enter the workplace, provided that reasonable accommodations are offered for disability and sincerely held religious belief. The new guidance also makes clear that pregnant employees may be entitled to exceptions to a vaccine mandate if exceptions are made for other employees similar in their ability or inability to work. Additionally, the FAQs provide:
Prior guidance explained that employers may not exclude from the workplace employees who are unable to be vaccinated due to disability unless the employee’s presence onsite constitutes a “direct threat,” meaning a “significant threat of substantial harm” to the employee or others that cannot be eliminated or reduced by reasonable accommodation. The FAQs elaborate that, in conducting the individualized inquiry that must be made to determine whether returning the employee to work creates a direct threat, employers may consider several factors, including, for example, the current level of COVID-19 community spread; the extent of direct interaction the employee typically has with others during the workday; the proportion of individuals in the workplace who are already vaccinated; whether others will be wearing masks; and whether social distancing is practicable. How the EEOC will balance these factors remains to be seen, but as a practical matter, employers in lower-risk settings such as office buildings may be unable to establish that an unvaccinated employee’s presence in the workplace rises to the level of a direct threat at this stage of the pandemic, because the threat can be reduced or eliminated with mitigation measures.
The FAQs note that employers may receive religious accommodation requests from employees who wish to wait for an alternative version or specific brand of COVID-19 vaccine for religious reasons, but elaborate that an employer generally has more leeway to deny a religious-based accommodation request than a request based on disability.
The FAQs provide specific examples of reasonable accommodations for unvaccinated employees entitled to accommodation. These include wearing a face mask; socially distancing; working a modified shift; getting periodic COVID-19 tests; teleworking; and reassignment (which the EEOC states should be a last resort).
Fully vaccinated employees may still be entitled to COVID-19-related accommodations. For example, the FAQs state that the COVID-19 vaccine may not offer immunocompromised individuals the same protections as other vaccinated individuals.
According to the EEOC, it is a best practice for employers mandating COVID-19 vaccines to notify employees that accommodation requests will be considered based on disability and religion on an individual basis.
The FAQs caution that employers with mandatory vaccine programs “may need to respond to allegations that the requirement has a disparate impact—or disproportionately excludes” employees based on protected characteristics such as race, color, religion, sex, national origin, or age. 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.” The FAQs do not specify what circumstances may support a disparate impact claim, or how employers should respond to employee complaints that a mandatory vaccine policy has a disparate impact.
While this new guidance provides helpful insight, employers should stay tuned for updates, as the FAQs state that the EEOC is still considering the impact of the CDC’s recent guidance for fully vaccinated individuals on its own guidance, and other federal, state, and local laws may impose additional limitations on employer vaccine programs. If you have questions regarding how to best address COVID-19 vaccinations in your workplace or other COVID-19-related queries, please reach out to an author of this post or the Hogan Lovells lawyer with whom you typically work.
*A co-author of this post, Shannon Finnegan, is a Law Clerk in the New York Office.
Authored by Michael E. DeLarco, George W. Ingham, Amy Folsom Kett, Zachary Siegel, and Shannon Finnegan