Considerations That Employers Should be Mindful of as Employees Return to the Office

In light of employees returning to the office, the Equal Employment Opportunity Commission (“EEOC”) provided comprehensive guidance through its Frequently Answered Questions (“FAQs”). These FAQs provide valuable insight on how employers should navigate these uncharted territories, while also leaving employers with questions. This article highlights the major takeaways from the EEOC guidance, yet the overarching theme that employers should consider when implementing a policy for returning to work is that there likely will not be any hard and fast rules that will apply to all employees—this will likely need to be an interactive process in which fact specific inquiries may be necessary to accommodate employees’ circumstances.

COVID-19 Vaccination Implementation Mandates

Possibly the most significant guidance outlined by the EEOC explains that the federal equal employment opportunity laws do not prohibit employers from creating a policy requiring its employees get a COVID-19 vaccination before returning to work. (K.1) It is critical that employers create such a policy in a non-discriminatory way and are conscious of disparate treatment of a protected class under Title VII of the Civil Rights Act of 1964. Similarly, employers are also required to take the same considerations in their practice of temperature checks, symptom questionnaires, and other screenings for COVID-19. (A.6, G.1)

When employers hire a third party to administer vaccinations to its employees, employers should be cognizant that the restrictions from the Americans with Disabilities Act (“ADA”) apply. (K.7) Specifically, the ADA limits an employer’s ability to request information that is likely to shed light on an individual’s disability unless the request is “job related and consistent with business necessity.” This is likely triggered during the pre-vaccination screening questions. Therefore, to comply with the ADA’s requirements, the EEOC recommends that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.”

Employers are permitted to offer incentives to their employees to produce documentation or other confirmation that the employees received the vaccination by a party not tied to the employer or by the employer directly. (K.16, K.17) Employers should be careful if they are that their incentive is not so large as to pressure the employees to disclose protected medical information. Notably, the guidelines are silent on whether an employer is required to provide incentives to its employees who are not able to obtain the COVID-19 vaccination. Employers should also be mindful that any incentives they utilize may implicate wage and hour laws; most noteworthy, whether the time an employee spends receiving the mandatory vaccine is compensable, but also issues such as whether employees should be compensated for their transportation costs to get vaccinated and whether employees are allotted time off due to adverse reactions of the vaccine.

When an employee is unable to receive the COVID-19 vaccination for reasons such as religion, pregnancy, or disability, the employer must provide a reasonable accommodation “that does not pose an undue hardship on the operation of the employer’s business.” (K.2) For each of these groups, the EEOC provides the following examples for reasonable accommodations that can be utilized: “wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.”

Religion

The guidance notes that accommodations are for sincerely held religious beliefs, practices, or observances. The definition of religion is broad and covers beliefs, practices, and observances that may be unfamiliar to the employer. (K.12) Even so, “if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”

Pregnancy

An employer is not permitted to exclude pregnant employees from the workplace based on pregnancy. (J.1) If an employee seeks a job adjustment or requests an exemption to receiving the COVID-19 vaccination, the employer should consider job modifications such as “telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.” (K.13)

Disability

In addition to accommodating pregnancy and religiously held beliefs in the workplace, employers who implement a mandatory vaccination policy must also attempt to provide reasonable accommodations to workers who are unable to receive the COVID-19 vaccine due to a disability. (K.5) If a disabled worker requests an exemption and the employer still wants the employee to comply with the policy, the employer must then show that (1) the unvaccinated worker poses a direct threat to others’ safety and (2) that providing a reasonable accommodation will not mitigate the threat. These considerations are fact-intensive, and employers should decide them on an individualized basis. An employer is not required to provide reasonable accommodations where an employee (who does not have a disability) requests an accommodation because a family member is at high risk for contracting COVID-19. (D.13)

How Employers Should Handle Employee Medical Information

If an employer obtains a doctor’s note or other documentation of vaccination, what must the employer do with that information? Generally, employers have an obligation under the ADA to keep all medical information about their employees confidential, including documentation of COVID-19 vaccination status. (K.4) This should be kept in the employee’s existing medical file, which, under the ADA, must be stored separately from the regular personnel files. (B.1) Whether the information is on a piece of paper or in digital form, the employer should ensure that other workers do not have access to it. (B.8) In some instances, employees may figure out a coworker’s vaccination status, but the employer is still prohibited from confirming that information. (B.5)

Incentives for COVID-19 Vaccination

With people gradually returning to the workplace, many employers have increased their efforts to raise their workers’ vaccination rates. The EEOC guidance makes clear that employers are entitled to do so with some limitations. If the employer or its agent is the one administering the vaccine, then the employer must offer incentives that are not coercive. (K.17) Keep in mind that incentives include both rewards (“If you are vaccinated, you’ll get ‘x.’”) and penalties (“If you do not get vaccinated, then ‘x’ will happen.”). This is because a coercive or substantial incentive might pressure employees into disclosing protected medical information in violation of the ADA during the pre-vaccination screening questions. Simply distributing information on the safety and effectiveness of the vaccine will likely not rise to the level of being coercive. Moreover, an employer administering the vaccine must also be sure to not acquire genetic information during the screening process, as that would violate GINA. (K.19)

If, one the other hand, the employer is not the party giving the vaccine, then the above restrictions do not apply: The employer may offer incentives for employees to voluntarily provide documentation of vaccination since it would not be a disability-related inquiry under the ADA, (K.16, K.17), nor would it entail the disclosure of protected genetic information under GINA. (K.18)

Conclusions

The current FAQs promulgated by the EEOC provide helpful, broad guidelines to employers on how to carry out a mandatory vaccination policy. At the same time, it is apparent that employers will have to sometimes make adjustments to their policies on a case-by-case basis. Although employers can, and perhaps should, encourage their employees to get the COVID-19 vaccine, there are many reasons—such as religion, pregnancy, and disability—that might prevent a worker from doing so. As with many things in life, one size does not fit all. Employers can also ask employees about their vaccination status, but should tailor their questions to elicit only what is relevant. Think before you ask. Finally, employers are allowed to incentivize employees to get vaccinated, but those incentives should only encourage—and not force—anyone to do so.  

Employer regulations regarding how to best handle COVID-19 and returning to the workplace is everchanging, and it will be important for companies to monitor these amendments. Segal McCambridge works closely with its clients to track the progress of EEOC guidelines to ensure its clients are fully compliant.

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