By Sara J. Ackermann, Mary Ellen Schill and Nicole L. Stangl
May 28, 2021
Today the EEOC updated its FAQ at Section K regarding vaccination requirements in the workplace. It also issued guidance for employees and job applicants entitled “Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic.”
Main takeaways from the EEOC’s update are as follows:
- The EEOC confirms that employers can require employees to get the vaccine before physically returning to the workplace BUT must engage in the interactive process to determine if employees with disabilities or religious beliefs that prevent them from getting the vaccine can be accommodated. [See EUA note below.]
- Employer can require employees to provide proof of vaccination. Any documentation related to confirmation of vaccination is medical information about the employee and must be kept confidential.
- Employers can require certain groups of employees to get the vaccine so long as such requirements do not result in a disparate impact based on a protected class.
In addition to the main takeaways listed above, the EEOC guidance on vaccine incentives now makes the distinction between vaccines provided by the employer or its agent, and those provided by third parties like pharmacies or a health department. Employers can offer incentives to employees for voluntarily providing documentation/confirmation of getting a vaccine from a third party without worrying about the ADA. Employers can also provide incentives for voluntarily receiving the vaccine if it is administered by the employer or the employer’s agent, but in that case the incentive can’t be so substantial as to be coercive. As to Genetic Information Nondiscrimination Act (GINA) concerns, employers can offer incentives to voluntarily provide evidence of vaccination that was provided by a third party without violating GINA, but if the employer or its agent are providing the vaccine, then incentives are permitted under GINA so long as the employer (or its agent) aren’t acquiring genetic information while administering the vaccine.
As we previously reported, because the vaccines are still in Emergency Use Authorization (EUA) status, employers who make the vaccines mandatory do have risk under other laws. For example, there have been reported cases of employees suing employers for “wrongful discharge” under a public policy theory for requiring them to get the vaccine while it is still in EUA status. The EEOC recognizes this in its guidance by noting:
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.
In addition, employers with workers outside Wisconsin should keep apprised of state and local laws that may restrict employers from mandating the vaccine.
We realize this is a confusing time for employers. Please contact any member of Ruder Ware’s COVID-19 Focus Team for assistance. We are here to help!
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