On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance as it relates to federal equal employment opportunity laws and COVID-19 vaccinations.  The EEOC provides this guidance as it applies to the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act, as amended, inter alia, by the Pregnancy Discrimination Act (Title VII).

Mandatory Workplace Vaccination and Disparate Impact Warning

The EEOC continues to recognize mandatory vaccination in the workplace, so long as reasonable accommodations are provided for employees due to a disability or sincerely held religious belief.  Employers should be cautioned that the EEOC takes the position that an employer may require vaccination when necessary for all employees to meet a job-related standard that is consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.  However, if a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  The EEOC provides additional guidance as to how to evaluate the direct threat and whether a reasonable accommodation would reduce or eliminate the threat.

However, the EEOC reminds employees that a vaccine requirement could have a disparate impact on employees in demographic groups that face greater barriers to receiving a COVID-19 vaccine.

Accommodation Requests and Exemplars

Employers should train managers and supervisors as to how to recognize a request for an accommodation as employees are not required to use the word “accommodation” when making a request.  Further, an employer may not mandate that requests be in writing as employees or applicants may make a verbal request for an accommodation.

The EEOC suggests certain potential “reasonable” accommodations for employers to consider:

• face masks in the workplace,
• social distancing from coworkers or non-employees,
• a modified shift,
• periodic COVID-19 testing,
• remote work, or
• a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to keep working under the same type of accommodation made for other employees.  And, the EEOC reminds employers that it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.

Medical Information

Employers may continue to ask employees whether they have been vaccinated as it is not considered to be an inquiry that is likely to disclose a disability.  And, employers may also request that employees provide documentation to verify vaccination status.  The EEOC reconfirmed that vaccination information continues to be a confidential medical record under the ADA and should be stored separately from an employee’s personnel file as a confidential medical record.

Incentivizing Vaccination

The EEOC acknowledges that employers may offer incentives to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.

Further, an employer may offer incentives to employees to voluntarily receive a vaccine administered by the employer. However, in the case of employer administered vaccines, incentives (or penalties for non-vaccination) should not be so substantial as to be considered coercive.

The EEOC cautions employers who provide vaccination and offer employees’ family members the opportunity to be vaccinated against extending any incentive offers to family members as such an incentive may violate GINA, while completely voluntary vaccination of family members may be offered by employers that take adequate confidentiality precautions.

Conclusion

As California’s Department of Fair Employment and Housing has not updated its guidance, California employers should seek consult their attorney.