Employment Law Alert – More Government Guidance on Return to Work– EEOC Updates and a Warning about Virginia
June 1, 2021
Late last week the EEOC updated its COVID- Frequently Asked Questions. Highlighted updates include guidance on collecting information about vaccine status, mandatory vaccine policies, and offering incentives to encourage vaccinations.
Collecting Information About Vaccine Status
Per the EEOC, CONFIRMED that employers CAN ask employees whether they have received the COVID-19 vaccine and may require proof of vaccination. Employers CANNOT, however, ask follow-up questions (e.g., “Why are you not vaccinated?”) that could elicit disability-related information or genetic information, including information about the employee’s family medical history.
WARNING- employers can ask about vaccine status, but they have an obligation to keep the answer CONFIDENTIAL. This is medical information and it must be stored securely and separately from personnel files. This information belongs with HR and it SHOULD NOT BE SHARED WITH MANAGERS.
Mandatory Vaccine Policies
Per EEOC, CONFIRMED that employers may require all employees to be vaccinated to enter the workplace, provided that that employers who mandate the vaccine also engage in the interactive process and offer reasonable accommodations to accommodate for disability/pregnancy/sincerely held religious beliefs (where possible). Additionally, the FAQs clarify:
- If the employee is not vaccinated and is entitled to an accommodation, the employer must make an INDIVIDUALIZED “DIRECT THREAT” ANALYSIS before excluding the employee from the workplace. Employers may consider several factors, including, for example, the current level of COVID-19 community spread; the extent of direct interaction the employee typically has with others during the workday; the proportion of individuals in the workplace who are already vaccinated; whether others will be wearing masks; and whether social distancing is practicable. OPEN QUESTION- whether employers in lower-risk settings such as office buildings will be able to establish that an unvaccinated employee’s presence in the workplace rises to the level of a direct threat at this stage of the pandemic, because the threat can be reduced with mitigation measures.
- Religious accommodations must be considered (e.g., waiting for an alternative version of the vaccine), but the EEOC CONFIRMED that an employer generally has more leeway to deny a religious-based accommodation request than a request based on disability.
- Managers should be TRAINED to identify when HR should be involved to engage in the interactive process and offer accommodations.
- The FAQs provide specific examples of reasonable accommodations for unvaccinated employees entitled to accommodation. These include wearing a face mask; socially distancing; working a modified shift; getting periodic COVID-19 tests; teleworking; and reassignment (which the EEOC states should be a last resort).
- Fully vaccinated employees may still be entitled to COVID-19-related accommodations. For example, the FAQs state that as the COVID-19 vaccine may not offer immunocompromised individuals the same protections as other vaccinated individuals, they may seek some reasonable accommodations to preserve their well-being and ensure a safe(r) environment for them to work in.
- UPDATE YOUR POLICY- the EEOC notes that it is a best practice for employers mandating COVID-19 vaccines to notify employees that accommodation requests will be considered based on disability and religion on an individual basis.
- The FAQs caution that employers with a mandatory vaccine policy “may need to respond to allegations that the requirement has a disparate impact—or disproportionately excludes” employees based on protected characteristics such as race, color, religion, sex, national origin, or age.
Per the EEOC, CONFIRMED that employers CAN offer incentives to encourage vaccination:
- Without restriction, employers can offer incentives (such as money or additional PTO) to employees who prove they were vaccinated off-site.
- If the vaccine is done at the worksite, the employer must avoid offering “coercive” incentives. (Pro Tip—unless you have a good reason, don’t do the vaccination on-site, and if you do go that route, avoid incentives or keep them to a minimum).
- Other forms of encouragement remain OK—including offering education, raising awareness of vaccine benefits, addressing common questions, and providing transportation to a vaccine sites.
A Warning about COVID Obligations in Virginia
Back in July 2020, the Virginia Occupational Safety and Health (VOSH) Program enacted an Emergency Temporary Standard, which included detailed requirements for disinfection, ventilation, infectious disease plans, hand sanitization, positive case reporting, and face coverings. A slightly modified version of that standard became permanent on January 27, 2021. This new permanent standard does not distinguish between vaccinated and unvaccinated workers.
The VOSH’s FAQ webpage states that fully vaccinated employees in non-healthcare settings may discontinue wearing face coverings, consistent with CDC guidance. However, VOSH has not modified the Permanent Standard language and has not provided clear guidance for employers on how to manage employees’ vaccination status.
We raise this as a warning and a reminder. All of this is happening SO FAST, and governments are trying to keep up with the latest science, the latest legal guidance, and the latest vaccination rates. It’s a tough job, and we do not envy them. But the answers remain cloudy, and employers must add “keep up with COVID guidance” to their ever-evolving to-do list. If you want help on that front—reach out to us and we will see if there are budget-friendly solutions we can offer.
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.