by Mandi Moutray
On May 28, 2021, the Equal Opportunity Employment Commission (“EEOC”) updated and expanded its guidance regarding the COVID-19 pandemic, and specifically addressed questions relating to COVID-19 vaccinations. The full guidance can be found in the EEOC publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
The updated guidance confirms that federal EEO laws do not prohibit employers from mandating vaccination for all employees physically entering the workplace, with some exceptions. Employers must provide reasonable accommodations to employees who refuse or decline the vaccine because of a disability or sincerely held religious belief unless providing an accommodation would create an undue hardship for the employer. Accommodations may include what employers have already put in place to help keep employees safe at work (e.g., face coverings, social distancing, enhanced sanitization, telework).
The updated guidance also notes that employers must engage in the interactive process with employees who have concerns about severe illness from COVID-19 because of their disability even if they are fully vaccinated.
Furthermore, the EEOC notes that an employer may deem that having an unvaccinated employee on site would present a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should work with their legal counsel to review the factors to consider in making this determination. If a direct threat exists, then an employer may exclude an unvaccinated employee from the workplace. However, this does not automatically result in termination of employment. Rather, the employer must consider whether other accommodations are available, like allowing the employee to work remotely or utilize available leave options.
The updated EEOC guidance also warns employers of additional considerations if employers are administering vaccines to employees (or contracting with third parties to administer the vaccine), particularly with regard to medical information that might be elicited during the vaccine procedure. A general rule is that employers should avoid “disability-related inquiries”—where the employer asks an employee questions about how a medical condition may impact the employee’s ability to perform his/her/their job. Engaging in disability-related inquiries or requiring a medical examination of an employee is acceptable only if/when it is “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(B). Per prior EEOC enforcement guidance, these circumstances usually arise when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. In those circumstances, the employer may require additional information about an employee’s medical condition in order to make employment-related decisions. For example, when an employer asks disability-related questions that follow up on an employee’s request for a reasonable accommodation, that inquiry is likely job-related and consistent with business necessity. Otherwise, employers should avoid asking questions that might unintentionally prompt an employee to disclose information about a disability or medical condition.
EEOC guidance states that asking employees to provide proof they received the COVID-19 vaccination alone is not prohibited by the ADA but asking why an employee did not get a COVID-19 vaccine might. Employers should carefully consider what information and documentation they will require employees to provide as proof of receiving the vaccine to avoid potential ADA implications. Additionally, if employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
In the expanded guidance, the EEOC now confirms that employers can offer incentives for employees who voluntarily get vaccinated. If, however, the employer administers the vaccines, the incentive must not be so large that an employee feels pressured into disclosing protected medical information in response to pre-vaccination disability-related questions.
The updated guidance still only addresses federal workplace anti-discrimination laws, not other laws that may affect whether employers can mandate vaccination for its employees, particularly vaccines approved by the FDA under Emergency Use Authorization (EUA). It is also worth noting that the EEOC specifically says it is currently considering the impact of the CDC’s updated guidance from May 13, 2021 – exempting fully vaccinated individuals from masking requirements in most situations. We believe it is likely the EEOC will update its guidance again in response to the new CDC guidance, so stay tuned!
Mandi D. Moutray practices primarily in the areas of education, higher education, litigation, and labor and employment law. She represents school districts and higher education institutions throughout Missouri with respect to employment and termination matters, student rights, harassment and discrimination disputes, and civil rights. Prior to joining the firm, Mandi practiced civil litigation at a large litigation firm in Saint Louis. While in law school, Mandi served as a judicial intern to the Honorable Roy L. Richter for the Missouri Court of Appeals, Eastern District.
Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Missouri Education – The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri. The Firm also has one of the largest school law practices in Central and Southern Illinois.
Illinois Education – Tueth Keeney is proud to be one of the state’s largest Illinois education law practices. The firm has one of the most experienced groups of attorneys in Central and Southern Illinois dedicated to serving public schools. We regularly represent nearly 150 public school districts, including many districts in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.