New Federal Guidance and Rule: Workplace Practices Related to COVID-19 Vaccination and New Safety Standards for Health-Care Settings
June 14, 2021
Publication| Labor & Employment
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) recently issued updated guidance regarding vaccines for all employers and new mandatory safety rules for health-care settings, respectively, related to workplace practices and COVID-19.
EEOC Guidance: Workplace Practices Related to COVID-19 Vaccination
On May 28, 2021, the EEOC issued an update to its COVID-19 technical assistance publication. The update gives employers guidance related to requiring COVID-19 vaccination and offering incentives to employees to encourage vaccination, consistent with the American Disabilities Act (ADA), Title VII, and the Genetic Information Nondiscrimination Act (GINA).
Employers May Require Employees to Get Vaccinated
As we have explained in a previous alert, the EEOC’s guidance allows employers to require all employees physically entering the workplace to be vaccinated for COVID-19, provided that the employer makes reasonable accommodations in accordance with the ADA and Title VII for persons with disabilities, persons with sincere religious beliefs, and pregnant employees. State and local laws may place additional restrictions on workplace vaccination requirements. Employers should be mindful that some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, and thus are more likely to be negatively impacted by a vaccination requirement.
The EEOC reiterated that, under the ADA, an employer cannot mandate vaccinations for employees that cannot be vaccinated because of a disability or sincerely held religious belief, unless it can demonstrate that the individual would pose a “direct threat” to the workplace. The direct threat determination is an individualized assessment. The updated guidance provides specific factors for employers to consider in making this determination, including the duration of the risk, the potential harm, and the type of work environment (such as the frequency of interaction with others, ventilation, and space for social distancing). The determination should be based on “a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including the level of community threat at the time of assessment, statements from the CDC, and/or statements from the employee’s health-care provider.
If an employee poses a direct threat, employers must engage in an interactive process to determine whether a reasonable accommodation would reduce or eliminate that threat, unless doing so would present an “undue hardship” to the employer. The updated EEOC guidance provides specific examples of reasonable accommodations for employees who do not get vaccinated due to a disability or sincerely held religious belief, including requiring the employee to wear a face mask, facilitating social distancing, altering the work environment (i.e., improving ventilation), and/or teleworking.
The EEOC’s guidance clarifies that employers may require pregnant employees to be vaccinated. However, under Title VII, pregnant employees may be entitled to the same reasonable accommodations as those made for similarly situated employees based on disability or religion. Therefore, should an accommodation be requested, an employer needs to engage in an interactive process with the pregnant employee to determine if the employee can be reasonably accommodated.
The EEOC’s new guidance also weighs in on the treatment of employees who are fully vaccinated for COVID-19 but who may have an underlying disability that places them at heightened risk, such as immunocompromised individuals, making clear that employers must also work with these employees to find reasonable accommodations. Overall, whether the employee is vaccinated or not, the employee’s request should be handled in accordance with applicable ADA standards, where the employer engages in an interactive process to determine if there is a disability-related need for reasonable accommodation, absent undue hardship.
Employers May Offer Employees Incentives to Get Vaccinated
According to the EEOC, consistent with the ADA and GINA, employers may offer incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer), such as a pharmacy, personal health-care provider, or public clinic. This information is not a disability-related inquiry under the ADA, nor an unlawful request for genetic information under GINA, and therefore does not run afoul of these federal EEOC laws.
Additionally, under the ADA and GINA, employers may offer incentives to employees for voluntarily receiving a vaccination administered by the employer or its agent, provided that the incentive (including rewards and penalties) is not so substantial as to be coercive. Although the EEOC does not explicitly define “substantial,” it explains that an incentive (or penalty) should not be so large that it “make[s] employees feel pressured to disclose protected medical information” when responding to the employer’s pre-vaccination medical screening questions.
The EEOC instructs that information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. This applies regardless of where the employee gets vaccinated. Therefore, under the ADA, vaccination information, like other medical information, must remain confidential and stored separately from the employee’s personnel files.
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. Asking a family member pre-vaccination medical screening questions would lead to the employer’s receipt of genetic information in the form of family history of the employee, which is prohibited under GINA. However, under GINA, the employer may still offer an employee’s family member the opportunity to be vaccinated without offering the employee an incentive, provided that all medical information obtained from the family member is used only for the purpose of providing the vaccination, is kept confidential, and is not provided to managers, supervisors, or others who make employment decisions. The employer must also obtain prior, knowing, and written authorization from the family member before asking for their medical information.
Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance includes several federal government resources available to those seeking more information about how to get vaccinated.
Employers should familiarize themselves with the EEOC’s updated guidance before implementing COVID-19 vaccination policies, including incentive programs. The EEOC guidance can be found HERE.
OSHA Rule: Mandatory Safety Standards for Employers in the Health-Care Sector
On June 10, 2021, OSHA issued an emergency temporary standard (ETS) that mandates certain workplace safety standards for employers in the health-care sector during the COVID-19 pandemic. The ETS is effective immediately upon publication in the Federal Registrar and can remain in place for up to six months, during which time a permanent rule may be considered. All of the requirements must be implemented at no cost to employees.
The ETS mandates employers to develop and implement a COVID-19 plan (in writing if more than ten employees) that includes specific components, such as designating a safety coordinator with the authority to ensure compliance. The ETS requires policies and procedures to minimize transmission of COVID-19, including patient screening and management, requiring face masks when indoors, social distancing, physical barriers separating employees that cannot be six feet apart, cleaning and disinfection practices, and ventilation procedures when dealing with persons with a suspected or confirmed case of COVID-19.
The ETS also requires that employers have screening and medical management procedures in place, including removal procedures for any employee who tests positive for COVID-19, is suspected of being infected, or is symptomatic for defined periods of time. Employers must provide medical removal protection benefits to removed workers who cannot operate remotely (i.e., the employee’s normal salary up to $1,400 a week for the first two weeks they are absent, but the amount may vary depending on the length of sickness). Employers may be able to claim a tax credit or offset some of the cost through publicly funded programs, such as paid sick leave. The ETS also includes training, anti-retaliation, and recordkeeping requirements.
The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when “in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.”
Employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days. However, OSHA will use its “enforcement discretion” if employers demonstrate a “good faith effort” to adhere if they miss a deadline. OSHA will continue to monitor trends in COVID-19 and update the ETS as appropriate.
If you have any questions, please contact an RLF employment attorney.