EEOC Updates Vaccination Rules – Again

The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its “What You Should Know” guidance about COVID-19. Specifically, Section K addressing COVID-19 vaccinations was updated with current information and expanded explanations on required versus voluntary vaccine policies, managing accommodations based on disability and religious beliefs, prescreen questions, and vaccine incentives. The following are key highlights employers should note.

• Required vs. Voluntary Vaccines. Employers can require employees to be vaccinated, subject to reasonable accommodation requirements. The EEOC cautioned employers to 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. Employers may offer voluntary vaccinations to certain groups of employees, provided that the decision does not violate federal employment nondiscrimination laws. Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. Employers cannot require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated; however, employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance.
• Reasonable Accommodations. Examples of reasonable accommodations for employees who are unable to get vaccinated due to a disability or religious belief: wearing a face mask, social distancing from others, working a modified shift, periodic testing for COVID-19, working remotely, or accepting a work reassignment. These same modifications can be applied for unvaccinated pregnant employees. Employees must inform the employer of the need for an exemption from a mandatory vaccine policy, but does not need to refer to the ADA or say “reasonable accommodation.” Managers and supervisors need to know how to recognize an accommodation request. Employers must engage in the interactive process with vaccinated employees who request an accommodation for an underlying disability due to heightened risk of severe illness. Religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available should be processed according to the same standards that apply to other accommodation requests.
• Pre-screen Questions. As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information that would violate GINA.
• Employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own. Employers may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent, provided that the incentive is not so substantial as to be coercive; however, this limitation does not apply to incentives offered to obtain documentation or other confirmation of vaccination from a third-party provider. An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.

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