Although it might be thought to be arriving a bit late to the game, the U.S. Equal Employment Opportunity Commission (EEOC) has posted advice laying out protections that exist for employees and job applicants for vaccinations during the COVID-19 pandemic under federal civil rights laws.
The two guidance documents answer questions posed by employer groups on Feb. 1 regarding employee vaccinations and as such are particularly welcome, points out one of the employer organizations that petitioned the commission for this information.
“Nearly four months ago, the National Retail Federation (NRF) and other trade associations petitioned the EEOC to issue guidance providing clarification on the extent to which employers may offer their employees incentives to vaccinate,” commented NRF’s Edward Egee, vice president of government relations and workforce development.
“The NRF is pleased the EEOC has finally acted and clarified that nothing in federal law prevents an employer from offering a vaccination incentive to an employee, provided the employee receives the vaccination from a third party (e.g., pharmacy, healthcare provider or public clinic). Further, employers may request these employees provide documentation or other confirmation of vaccination.”
A total of 42 employer groups joined with NRF in petitioning EEOC for the guidance on Feb. 1, including the U.S. Chamber of Commerce, Associated General Contractors, International Warehouse Logistics Association, Society for Human Resource Management, National Association of Manufacturers, and a number of franchise associations and health insurance companies.
Previously, EEOC had issued other statements regarding employee rights, starting early in the COVID pandemic, but those dealt primarily with other areas of possible concern, such as the use of antibody tests to determine whether employees could return to work, and to address substance abuse accommodation.
In its May 28 update, the EEOC released two related publications. One is an expanded technical assistance document about the COVID-19 pandemic, addressing questions arising under the federal equal employment opportunity laws. The second is a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during the pandemic.
Their release follows an EEOC hearing that was held on April 28 focused on the impact of the COVID-19 pandemic on civil rights in the workplace, where the EEOC heard from a wide range of experts.
The commission said its new documents were prepared prior to May 13, when the Center for Disease Control and Prevention (CDC) issued its most recent guidance recommending the loosening of public mask wearing and social distancing guidelines for fully vaccinated individuals. As a result, the EEOC documents do not specifically address that guidance (which CDC coincidentally also chose to update on May 28).
Offering New Information
The EEOC’s expanded technical assistance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent.
The commission stressed that the technical assistance document answers COVID-19 questions only from the perspective of federal economic equal opportunity (EEO) laws. As such, it reminded employers and employees that other federal, state and local laws come into play regarding the COVID-19 pandemic and the workplace.
The key EEOC updates to the technical assistance are:
Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19. This can occur so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964, which protects against employment discrimination based on race, color, religion, sex and national origin, as well as other EEO considerations.
Other laws that are not in EEOC’s jurisdiction may place additional restrictions on employers, the commission reminds. “From an EEO perspective, employers should 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.”
Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination. This applies to information obtained from a third party (not the employer) in the community, such as a pharmacy, personal healthcare provider or public clinic.
If employers choose to obtain this vaccination information from their employees, the commission emphasized that they must keep vaccination information confidential under the terms of the ADA.
Employers who are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information,” EEOC asserts.
Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources that are available for those workers seeking additional information about how to get vaccinated.
The new resource for job applicants and employees also provides basic information about how federal employment discrimination laws help workers who are being harassed; who need extra protection against getting sick; who are not being allowed to work; or who need a modification of their employer’s COVID-19 safety requirements.
EEOC chair Charlotte A. Burrows pointed out, “The EEOC will continue to clarify and update our COVID-19 technical assistance to ensure that we are providing the public with clear, easy-to-understand and helpful information. We will continue to address the issues that were raised at the commission’s [April 28] hearing on the civil rights impact of COVID-19.”
