The year of 2020 had employers learning and re-learning their protocol for safety in their offices and job environments. Unfortunately, it looks like 2021 will be similar.

On June 4, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance as to COVID-19 vaccine requirements in the work-place. EEOC provided clarification regarding employer-required mandatory vaccinations, employer and third-party provided vaccine incentives, and confidentiality of employees’ vaccination information. However, there are still questions surrounding employers offering employees vaccine incentives, including what incentives will be deemed so substantial as to be “coercive”, and whether employers must offer incentives to workers who cannot receive the COVID-19 vaccine due to religious or medical reasons.

Per the EEOC’s statement, U.S. companies can require employees in a workplace be vaccinated against COVID-19. However, there are exceptions – mainly employees who request exemptions for medical or religious reasons from the vaccine requirement.

The EEOC’s statement reminded employers that they still have to comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”) (prevents disability discrimination), Genetic Information Non-Discrimination Act (“GINA”) (prevents genetic information discrimination), and Title VII of the Civil Rights Act of 1964 (prevents religious discrimination). And as always, employers have to follow other federal and state laws that do not allow discrimination when implementing safety protocol at work, including safety protocols that require COVID-19 vaccination.

EEOC went on to offer some guidance that employers, instead of mandating COVID-19 vaccinations at their workplace, may offer incentives to workers to be vaccinated, as long as they are not “coercive.” But at the same time, EEOC did not further define what is considered “coercive.”

ADA Implications for Voluntary Employer Vaccination Incentive Programs

To encourage employees/workers to obtain the COVID-19 vaccination, a vaccine incentive program can be offered. But there are implications with the ADA. The ADA prohibits discrimination against qualified individuals with disabilities.  The ADA does not permit employers to make “disability-related inquiries” to employees in terms of their medical condition. The ADA mandates that workplace health initiatives be voluntary if they solicit medical details from participants, like the result of a health screening or an individual’s medical history.

The new EEOC guidance, however, clarifies that under the ADA, employers may legally offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a third party, including a pharmacy, public health department, or other health care provider in the community.  The EEOC clarified that such a request is “not a disability-related inquiry covered by the ADA” because the employer is not making the inquiry in the form of a pre-vaccination screening.

The guidance differs, however, if the employer itself is sponsoring the vaccination program.  The EEOC explained that under the ADA, an employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent “if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.”  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a significant incentive could make employees feel pressured to disclose protected medical information, which is prohibited by the ADA.  Again, however, the EEOC did not explain or provide any examples of what incentives will be considered “so substantial as to be coercive” where the employer itself is administering the vaccination program.

Regardless of whether it is a vaccination incentive program obtaining medical information from a third party or the employer itself, the employer is required to keep such vaccination information confidential pursuant to the ADA.  Documentation showing that an employee received a COVID-19 vaccination and/or answered the pre-screening vaccination survey for the employer contains confidential medical information under the ADA, which is subject to a heightened level of protection. This heightened level of protection will increase administrative costs for employer and the ADA should be consulted so that compliance is accomplished.

GINA Implications for Voluntary Employer Vaccination Incentive Programs

Incentives for vaccinations and related medical information also implicate protected information under GINA, which prohibits employers from discriminating against an employee because of genetic information.  Under GINA, “genetic information” can include genetic tests and family medical history.

The updated EEOC guidance makes clear that employers do not violate GINA by incentivizing employees to submit confirmation of their vaccination status from third parties.  Vaccination status of any employee or an employee’s family member is not considered genetic information or family medical history under GINA.

The EEOC’s guidance differs when the employer or the employer’s agent offers vaccinations to the employee or the employee’s family member.  Unlike third party vaccinations, employer-offered vaccinations require the employer to ask screening questions that elicit medical information.  Employers may offer incentives for employees to be vaccinated by the employer as long as the employer does not obtain genetic information from the employee.  The pre-vaccination screenings for the three approved vaccines do not inquire into genetic information.  Therefore, if employers plan to offer vaccines to employees, they should limit pre-screening questions to the CDC’s pre-vaccination checklist found on the CDC’s website.

Employers may not, however, offer incentives for an employee’s family member to be vaccinated by the employer.  Such an incentive violates GINA, because the pre-screening questions would elicit information regarding the family medical history of the employee.  Under GINA, it is illegal to elicit family medical history of an employee by offering an incentive.  Nonetheless, an employer may offer vaccines to family members of an employee without offering an incentive.  If an employer offers vaccines to family members without incentivizing receipt of the vaccine, medical information received from the family member must be kept confidential and not provided to any supervisor, manager, or other person who can affect the terms and conditions of employment of the employee.  Additionally, the employer must obtain a knowing, voluntary, and written authorization from the family member before asking questions about their medical conditions.

Always a note to be considered —— If an employer decides, as a way to maintain a safe work environment, to require its employees to be vaccinated, the employer will need to make careful case by case considerations and modifications for those employees who seek exemptions to this rule per the ADA. If the employee requests a modification to the employer’s safety requirements or equipment (including the requirement to obtain a COVID-19 vaccination) because of a medical condition or a religious belief, practice, or observance, the employer must comply with the ADA and provide a reasonable accommodation. For example, an accommodation might be made to the employer’s vaccination requirement, and instead ask the employee to use masks, social distancing, schedule changes, or reassignment to stay safe at work.

In general, employers should seek guidance and consult the EEOC’s website as to what are considered “reasonable accommodations” under the ADA:  https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

Employers should consider and assess the EEOC’s updated guidance and related issues before implementing a COVID-19 vaccination incentive program to ensure appropriate procedures and safeguards are in place to comply with the ADA, Title VII, GINA, and other federal and state laws.  In that regard, it is always a best practice to consult with a human resources manager and legal counsel regarding any employment-related issues and/or business customer issues.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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