By: Lindsay M. Massillon | June 21, 2021
As published in the Daily Business Review
On May 28, the U.S. Equal Employment Opportunity Commission (EEOC) published updated questions and answers directly related to the increasing confusion regarding implementation of vaccination policies as employers look to get back to business. The most recent statistics from Ourworldindata.org show that over 136 million Americans—or about 41% of the population—are now fully vaccinated against COVID-19. However, there are still a number of adults who may have questions regarding the safety of the available COVID-19 vaccines or who elect not to receive the vaccination for one reason or another. As with most things in the workplace, employers may find that it is difficult to please every employee or create a fair policy regarding what has become a very divisive topic. What is a responsible employer to do? The EEOC published timely guidance on this issue as many employers set their sights on fully reopening beginning June 1 or gradually opening through the summer with the expectation of a full office by the fall.
Since the beginning of the COVID-19 pandemic in March 2020, there has been and will continue to be gray areas for employers. However, below are some of the key points from the EEOC’s May 28 guidance and best practices for employers.
The Burning Question. As part of the updated guidance, the EEOC answers the question on every manager’s mind—Can I require my employees to be vaccinated in order to work in the office? Yes, says the EEOC, whether the employee obtains the vaccine from the employer directly or in the community. There are caveats: Employers must make reasonable accommodations in the event an employee seeks to be exempted from a mandatory vaccination policy due to religious beliefs or a disability. There are also a variety of other considerations.
Religious Accommodations. In order to be protected under Title VII, religious beliefs, practices, or observances must be “sincerely held.” There are a number of people who have personal objections to vaccinations—but generally, those individuals will not be able to prove that their objection equates to a religious belief. Even if an employee has a severely held religious belief, an employer may still be able to deny an accommodation if doing so would pose an undue hardship to the employer. The EEOC is clear in its warning that the employer should generally assume that the employee’s request for an accommodation for their religious beliefs is valid and consider all potential accommodations “including telework and reassignment.”
Accommodations Due to Disability. The analysis for a person with a disability is slightly different. While an employer can exclude a person who does not obtain the vaccine due to a disability from the workplace, it can only do so if the person poses a “direct threat.” As the term implies, this is not an easy standard and requires a fact-intensive analysis of the job duties, environment, etc. Thus, the EEOC urges employers to carefully consider requests for an exemption from a mandatory vaccination policy made by individuals with a disability. Employers should offer accommodations unless doing so would pose significant expense or difficulty. As with all requests for accommodations under the Americans with Disabilities Act (ADA), employers are required to engage in an interactive process in order to determine what accommodations are available. Again, this may include wearing a mask, social distancing, telework, or (as a last resort) reassignment. The same considerations should be made for those women who are pregnant or who have pregnancy-related conditions.
Questions Regarding Vaccination. Another question employers have is whether they can legally ask employees whether they have been vaccinated. The EEOC expressly states that employers can ask and can also request documentation confirming that the employee has been vaccinated. However, employers must keep this medical information confidential and in a separate file so that this (and any other medical information) is kept out of the employee’s general personnel file.
Other Considerations. In addition to the above potential exemptions, employers are warned to make sure that their vaccination policy does not have a disparate impact on a certain protected class. Again, as with any other employment policy, if the employer fails to apply the policy fairly and consistently, claims of discrimination may ensue.
Incentives. Under the Genetic Information Nondiscrimination Act (GINA), an employer may offer “noncoercive” incentives to employees in exchange for the employee getting vaccinated and/or for providing documentation confirming vaccination. However, employers should be cautious when seeking to provide monetary incentives as doing so may be considered part of an employee’s regular rate which, in turn, impacts the rate of overtime owed to employees. Further, the EEOC is silent as to what could be a valid, non-coercive incentive.
It is likely that the EEOC will continue to update its guidance as businesses begin to implement policies and bring employees back to the office. Employers who are interested in creating a policy related to vaccinations, returning to work, or modified telecommuting policies should work closely with their employment counsel. Additionally, as employees request accommodations to question the employer’s policy, consulting with an employment attorney before taking adverse employment actions may greatly reduce the risk of exposure.
Lindsay M. Massillon is a shareholder at Fowler White Burnett. She focuses her practice on labor and employment law and commercial litigation. Contact her at LMassillon@fowler-white.com.