What The EEOC’s Updated Covid Guidelines Mean For Leaders

The U.S. Equal Employment Opportunity Commission (EEOC) today announced their updated nd expanded guidelines concerning Covid-19 vaccination requirements and incentives for employees. The guidelines address several pandemic-related issues that have challenged employers for several months.

The agency said that federal equal employment opportunity laws:

Do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for Covid-19, so long as employers comply with the reasonable accommodation provisions of the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 and other considerations.
Do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.
According to the EEOC, “If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.”

On other related matters, the federal agency said employers:

That are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
May provide employees and their family members with information to educate them about Covid-19 vaccines and raise awareness about the benefits of vaccination.
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Michael Elkins is a partner and founder at MLE Law, a labor and employment/business law firm. He said, “Employers now have a very clear directive both as to vaccination requirements and incentive programs. This should make it easier [on] employers when creating vaccination policies, and allow [then] to communicate a clear and unequivocal message to their employees” regardless of the policies they choose.

Important Limitations
Reid Wakefield is an associate in Mirick O'Connell's labor, employment and employee benefits group. He cautioned that, “Employers should keep in mind that the EEOC’s guidance is limited to only the laws that it enforces [and] those related to anti-discrimination and equal employment opportunities under federal law.

“It is recommended that employers consider other laws that impact pandemic-related workplace issues, such as state and local discrimination and medical information laws which apply to their jurisdiction that may provide different standards, as well as workplace safety laws,” he said.

Vaccination Incentives
Justin M. Harrison, a member of the Jackson Kelly law firm’s labor and employment group, said the EEOC’s new guidance, “... addresses several issues regarding vaccinations that have challenged employers since the end of 2020.”

Harrison said that, “In a moment of rare and welcomed clarity, the EEOC notes that employers can provide incentives to employees who voluntarily become vaccinated, and that providing such incentives is not ‘coercive’ to individuals with disabilities who cannot receive the vaccine (unless the employer itself is providing the vaccine). This is the right approach, but it would have been more beneficial had this guidance been issued several months ago when vaccines first became available.”

Continued Frustrations
Harrison observed that, “Unfortunately, the new EEOC guidance will continue to frustrate some employers, especially healthcare employers. The EEOC remains steadfast in its approach that employers should provide reasonable accommodations to employees with religious or medical objections to receiving the vaccine.

“This approach is inconsistent with the EEOC’s acknowledgment that Covid-19 constitutes a direct threat. Normally, employers are not required to provide accommodations if doing so constitutes a direct threat to the safety and welfare of employees. Arguably, an unvaccinated individual working in patient care presents a direct threat to the patient and perhaps others,” Harrison said.

“If anything, Covid-19 has taught us that federal employment law represents an impediment to controlling an international pandemic,” he concluded.

Creating An Interesting Dynamic
Travis Forster, the chief legal officer at Work Shield, said, “the new EEOC laws regarding vaccines create an interesting dynamic for employers. On the one hand, employers want their employees safe and vaccinated, in general. On the other hand, they also want to respect the choices of their employees.”

More Leeway
“Given this,” Forster said, “employers can now determine what type of Covid/vaccine policy they really want for their culture, including any [right to work] strategy and policy. I believe that most employers will want their employees vaccinated, subject to reasonable accommodations and ADA aspects. The best way to implement this is for employers to provide some form of incentive or accommodation for vaccinations —monetary amounts, paid time off for any side-effects, etc.”

Vaccination Documentation
He said, “The other interesting impact is the documentation of vaccination. I think as a general rule, most employers will ask employees to sign-off that they were vaccinated versus providing documentation with incentives (some of which may be quite large)—especially given the administrative burden and risk of liability.

“Overall, I think this will be welcomed by employers across the U.S. to help alleviate any fear, anxiousness or otherwise of those employees looking to get back to work in a safe and secure office setting,” Forster said.

Countering Rumors
Aaron Ansel, CEO and cofounder of Puraka Clean Air Technologies, said the updated guidance, “is going to be helpful for countering the persistent and untrue rumors that employers cannot mandate Covid-19 vaccinations. This misinformation is often associated with claims that the vaccinations are ‘not FDA approved’ and therefore cannot be required.

“It also provides welcome clarification that requiring masks in the workplace can serve as a reasonable accommodation for both unvaccinated employees and also vaccinated but immunocompromised employees. This will allow employers to satisfy their EEOC obligations not to impose undue hardship by simply requiring masks in the workplace for all employees, especially masks made to a CDC-endorsed standard like F3502.

The Biggest Barrier
Ansel said, “The biggest barrier to adopting a vaccination requirement is undoubtedly going to be the record keeping requirements. Under the new guidelines, the EEOC clarified that proof of vaccination is considered a health record, and must be stored securely in a separate system from other employee records. This kind of compliance solution requires technical as well as legal resources, and can take significant time to implement.”