EEOC and OSHA Release Updated Vaccine Guidance

Two questions that seems to be on every employer’s mind these days are whether employers can require employees to receive a COVID-19 vaccine and what incentives employers can use to encourage employees to voluntarily choose to be vaccinated. Fortunately, the Equal Employment Opportunity Commission (EEOC) just released some long-awaited guidance that offers some answers to these pressing questions. Additionally, the Occupational Safety and Health Administration (OSHA) also released updated guidance that addresses how employers should treat fully vaccinated individuals in the workplace. We address each of these agencies’ guidance in turn.

EEOC’s Vaccine Guidance (updated May 28, 2021)

The EEOC released COVID-19 vaccine incentive guidance as part of its evolving technical assistance guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws” guidance. That guidance can be readily accessed online. Below is a quick breakdown of some key things the EEOC had to say about employer-vaccine incentives:

• Under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA), employers may offer an incentive to employees to voluntarily provide documentation or other confirmation that they and/or their family members received a vaccination on their own from a pharmacy, public health department, or other health care provider. Any vaccination information that employers receive must be kept confidential.

• Under the ADA, employers may offer an incentive to employees for voluntarily receiving a vaccine administered by the employer or its agent, but the incentive (which includes both rewards and penalties) cannot be “so substantial as to be coercive.” The EEOC says that because vaccinations require employees to answer pre-vaccination disability-related screening questions, “a very large incentive could make employees feel pressured to disclose protected medical information.” The EEOC expressly notes that this “incentive limitation” does not apply if the employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider (i.e., not their employer or an agent of their employer).

• Under GINA, employers may offer an incentive to employees in exchange for getting vaccinated by the employer or its agent. The pre-vaccination questions for the three COVID-19 vaccines now available do not inquire about genetic information.

• Under GINA, employers may not offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent. Administering a vaccine to an employee’s family member would require asking pre vaccination questions that would lead to the employer’s receipt of genetic information in the form of family medical history of the employee. But GINA permits an employer to offer vaccinations to an employee’s family members without offering the employee an incentive, so long as it takes steps to comply with GINA.

Also, the EEOC offers this additional guidance related to vaccines:

• The federal Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, provided that employers comply with the reasonable accommodation provisions of the ADA and Title VII and other EEO considerations. The EEOC noted that other laws, outside the EEOC’s jurisdiction, may otherwise restrict employers. From an EEO perspective, employers should keep in mind that vaccine mandates can disparately impact protected classes because some protected classes may face higher hurdles to receiving a COVID-19 vaccine than others and some protected classes may be more likely to be negatively impacted by a vaccine mandate.

• In a new resource for job applicants and employees, the EEOC states, “[i]f you did not take a COVID-19 vaccine because of your disability or religious belief, practice, or observance, you might be able to get an exception to your employer’s vaccination requirement, and instead ask to use masks, social distancing, schedule changes, or reassignment to stay safe at work.”

• Employers should treat information about an employee’s COVID-19 vaccination status as confidential medical information under the ADA, regardless of where the employee gets vaccinated. Like all medical information, such information should be stored separately from the employee’s personnel files under the ADA.

OSHA’s Vaccine Guidance (updated May 18, 2021)

Though the OSHA website still requires vaccinated employees continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13, 2021 guidance on fully vaccinated employees will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Amdursky, an O'Melveny partner licensed to practice law in California, Apalla U. Chopra, an O'Melveny partner licensed to practice law in California, Adam Karr, an O'Melveny partner licensed to practice law in California, and Allan W. Gustin, an O'Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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