With a significant percentage of individuals now fully vaccinated against COVID-19, businesses are beginning to reopen or expand in-the-office activity in Northern Virginia and across the Commonwealth. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated and expanded technical assistance targeted to answer some of the frequently asked questions concerning COVID-19 vaccinations in the employment context.

As summarized below, the key questions addressed by the EEOC involve whether, or under what circumstances, employers: (1) can mandate COVID-19 vaccinations for all employees physically entering the workplace; (2) may offer incentives to employees to be vaccinated against COVID-19 or to disclose to their employer their COVID-19 vaccination status; and (3) must reasonably accommodate the medical needs or religious beliefs of their employees.

Can employers mandate COVID-19 vaccines for employees as a condition of returning to the workplace?

Yes. The EEOC made it clear an employer may require that all employees meet a workplace standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination, subject to the reasonable accommodation requirements of the ADA (disabilities) and Title VII (sincerely held religious beliefs). Reasonable accommodations under both statutes are discussed briefly below.

An employer who offers voluntary vaccines to only certain groups of its employees must also be sure to comply with Title VII and other federal employment nondiscrimination laws, e.g., an employer may run afoul of Title VII by offering voluntary vaccinations to certain employees or groups of employees based on national origin or other personal characteristics protected by statute.

What limitations does the ADA impose for COVID-19 vaccine mandates?

Under the ADA, if a particular employee is unable to vaccinate against COVID-19 due to a disability, an 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, considering the particular employee’s present ability to safely perform the essential functions of the job. Examples include:

(1) the duration of the risk;

(2) the nature and severity of the potential harm;

(3) the likelihood that the potential harm will occur; and

(4) the imminence of the potential harm.

If a particular employee with a disability who is not vaccinated would pose a “direct threat” to self or others, then the employer is required to engage in the familiar ADA interactive process to determine whether the employer can provide the employee with a reasonable accommodation, absent undue hardship to the employer, that would reduce or eliminate the direct threat. Reasonable accommodations here can include: (1) requiring the employee to wear a mask or other PPE; (2) working a staggered shift; (3) making physical changes in the work environment, such as improving ventilation systems; (4) permitting telework, if feasible; and/or (5) reassigning the employee to a vacant position in a different workspace.

What about vaccine mandate limitations under Title VII for sincerely held religious beliefs?

Title VII requires an employer to provide a reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance that prevents the employee from getting a COVID-19 vaccine, unless the accommodation would pose an undue hardship to the employer. Title VII’s definition of “religion” is very broad; it protects beliefs, practices, and observances which are not mainstream or with which the employer may be unfamiliar. The EEOC strongly suggests that an employer assume the sincerity of the employee’s request for religious accommodation unless there are clear indications to the contrary.

As with the reasonable accommodation process under the ADA, an employer should thoroughly consider all available reasonable accommodations, including telework and reassignment, absent an “undue hardship” to the employer. Title VII’s definition of “undue hardship” – having more than minimal cost or burden on the employer – differs from the ADA’s requirement and is an easier standard for employers to satisfy.

Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?

Yes. The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. While employers are permitted to requiring employees to bring in documentation or other confirmation of vaccination, the employee’s information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Can employers offer incentives to employees to voluntarily provide certification that they have been fully vaccinated against COVID-19?

Yes. An employer may offer incentives to employees to voluntarily provide documentation confirming that the employee has been fully vaccinated against COVID-19. The employer’s request for documentation of vaccination is permissible because it is voluntary and is not a disability-related inquiry covered by the ADA.

What about employer incentives to employees for voluntarily receiving a vaccination administered by the employer or its agent?

Employer incentives to employees to voluntarily receive COVID-19 vaccination by the employer or a third-party contractor of employer are acceptable, provided that any incentive (which includes both rewards and penalties) is not so substantial as to be coercive. As explained above, this limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

What are the primary takeaways from the EEOC’s latest COVID-19 vaccine guidance?

The EEOC’s latest guidance provides additional and welcome clarity to vaccine issues as they relate to your workforce and a window into the EEOC’s latest views on how these issues play out under the ADA and Title VII.

Bean, Kinney & Korman can help your business with COVID-19 workplace planning, policies, and practices.

Bean, Kinney & Korman’s employment law practice group has extensive experience in health, safety and employment-related issues and can provide you with quick, cost-effective assistance in implementing COVID-19 vaccine policies and practices that are compliant with state workplace safety regulations and meet federal guidelines announced by the EEOC, OSHA and the CDC, while considering your business model and desired approach.

If you need assistance with COVID-19-related issues or questions, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.