Since the start of the pandemic, the Equal Employment Opportunity Commission (EEOC) has periodically updated its guidance to address emerging topics related to COVID-19, including COVID-19 vaccination. On October 13 and October 25, 2021, the EEOC updated its guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address questions regarding vaccination incentive programs and vaccine mandates.
Which Parts of the Guidance Were Updated on October 13?
The updates issued on October 13, did not make any substantive changes to previously issued guidance but addressed the prior responses to nine of the existing FAQs with more clarity and conciseness. The updates also maintain the EEOC’s position of supporting vaccination, subject to reasonable accommodation obligations.
The following FAQs were included in the updated guidance:
- COVID-19 Vaccinations: EEO Overview (K.1 and K.3)
- The ADA and COVID-19 Vaccinations (K.4 and K.9)
- Title VII and COVID-19 Vaccinations (K.13)
- GINA and COVID-19 Vaccinations (K.15)
- Employer Incentives for COVID-19 Voluntary Vaccinations Under ADA and GINA (K.16, K.17, and K.18)
What Are the Key Highlights of the October 13 Guidance?
The updated guidance elaborates those policies which might have a disproportionate impact on certain groups of employees, therefore consistent application of mandatory vaccination policies is essential, in addition to the following:
- Pregnant Employees. The EEOC mirrors the guidance from the U.S. Centers for Disease Control and Prevention (CDC) encouraging persons who are pregnant or breastfeeding to obtain the COVID-19 vaccine, if an employee seeks an exemption from a vaccination requirement due to pregnancy, employers must ensure that the pregnant employee is not discriminated against compared to other employees similar in their ability or inability to work.
- Vaccine Awareness/Education. An employer may provide employees information about COVID-19 vaccination, raise awareness about the benefits of vaccination, work with medical providers to make vaccination available for unvaccinated workers in the workplace, provide information on low-cost or no-cost transportation resources to vaccination sites, and offer paid time off for vaccination, all without violating the ADA or Genetic Information Non-Discrimination Act (GINA).
- Vaccine Incentives. Employers may offer incentives to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with the employer, such as the employee’s own physician, pharmacy, or a public health department. As long as the health care provider is independent of the employer, there is no limit or cap on the incentive an employer may offer. If the employer is administering the vaccine, the value of the incentive may not be so substantial as to be coercive because of the genetic and/or disability related information that the employee may have to provide the employer as vaccine administrator.
Which Parts of the Guidance Were Updated on October 25?
The guidance issued on October 25, 2021, includes the addition of new FAQs (L.1 through L.6) which focus on assisting employers, employees and applicants with navigating vaccine-related religious accommodation requests including what types of questions an employer may ask, what cooperation is required of the employee making the accommodation request and factors that may undermine credibility of a sincerely held belief.
What Are the Key Highlights of the October 25 Guidance?
The key updates of the guidance include:
- Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
- Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
- Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.
- If there is more than one accommodation the employer may choose the accommodation that will be provided.
Next Steps for Employers
Employers are encouraged to review the updated guidance which can be easily located by looking for FAQs with a date of 10/13/2021 and 10/25/2021. Employers should provide employees and applicants with a contact person and information regarding the process for submitting a request for a disability related or religious accommodation.
Employers may also consider updating their vaccine mandate policy to include a statement that objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on non-religious concerns about the possible effects of the vaccine, do not qualify as religious beliefs under Title VII.
It is also recommended that employers visit the Job Accommodation Network (JAN) website for resources on types of accommodations that may be offered. Legal counsel may need to be consulted to assist with individualized assessments and making determinations about whether an undue hardship exists as undue hardship must be assessed on a case-by-case basis and cannot be based on hypotheticals.
Employers should also train those that will be responsible for implementing the company’s policy and procedures on vaccine mandates on how to properly address accommodation requests, including the reasonable accommodation process.