E.E.O.C.’s Expanded Guidelines for Pandemic Management

The federal Equal Employment Opportunity Commission (EEOC) has again expanded its pandemic guidelines to address the effect of the Americans with Disabilities Act (ADA) and other workplace anti-discrimination laws on the national COVID vaccination campaign that now lies ahead.

A major “tension” point is between an employee’s right to maintain the privacy of his or her medical information and an employer’s responsibility to protect the health and wellbeing of its workforce.  Since the declaration of COVID as a pandemic, the EEOC has relaxed ADA confidentiality restrictions to give business greater ability to thwart widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

The agency’s December 16, 2020 updated COVID guidance offers new vaccination-related “do’s and don’ts,” including:

• An Employer May Ask Whether a Worker Has Been Vaccinated: The EEOC does not regard a vaccination as a “medical examination” because a shot to prevent an infection is not a procedure or test seeking the existence of a health-related condition. Thus, an employer is free to ask an employee if he/she has been inoculated.

Thus, an employer may ask an employee for proof of receipt of a COVID-19 vaccination. However, follow-up employer questions, such as asking why an individual has not received a vaccination, may elicit disability information subject to the pertinent ADA standard that the inquiry be “job-related and consistent with business necessity,” discussed below. Thus, the EEOC counsels that the “employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”

• An Employer Requiring Vaccination Must Limit Screening Questions: As pre-vaccination medical screening questions are likely to elicit disability or religious affiliation information, an employer requiring COVID inoculation may only ask such questions as are “job-related and consistent with business necessity.” Permitted questions must thus concern information that if not disclosed will “pose a direct threat to the health or safety” of that worker or others.

Thus, if a business is to make vaccination mandatory and management encounters an employee claiming she or he is unable to receive the inoculations due to a disability or religious belief/practice, the EEOC counsels that management can and should discuss the prospects of reasonable accommodation with that individual, e.g., prospect of performing tasks remotely, short of an undue hardship to company operations.

• An Employer Must Explore Possible Reasonable Accommodations for Those Declining Vaccination Due to Disability or Religion: Process is vital here. The EEOC stresses that management must be flexible and interactive, include determination “whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.”
• Disability-Related Vaccination Screening Questions Are Permitted in Two Circumstances: The EEOC advises there are two situations where disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement: (a) an employer offering a voluntary vaccination program must also give the employee the choice of answering pre-screening, disability-related questions; and (b) if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer (e.g., an independent pharmacy or other health care provider), that third party is free to ask pre-vaccination medical screening questions.
• Preserve the Confidentiality of Medical Information: The new guidance also reiterates that an employer must keep confidential any employee medical information obtained in the course of its vaccination program.
• Excluding an Unvaccinated Worker is the Last Resort: Ultimately, the guidance states: “[i]f an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”
• Possible Leave for an Unvaccinated Worker: An unvaccinated worker who must be excluded from the workplace for lack of any possible reasonable accommodation may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), other state or local leave laws or the employer’s policies.

See also:

• COVID’s Constant? … Change; EEOC’s Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable – Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

December 17, 2020