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EEOC and OSHA Update Guidance on Key Considerations Regarding COVID-19 Vaccinations

June 10, 2021


As businesses seek to re-open and return to pre-pandemic work environments, employers should know that the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety Health Administration (“OSHA”) updated their guidance concerning COVID-19 vaccinations in the workplace. On May 28, 2021, the EEOC revised their guidance to expressly allow employers to offer incentives for employees to be voluntarily vaccinated and confirmed that employers may impose mandatory vaccination policies. OSHA recently eliminated their requirement for employers with mandatory vaccination policies to record adverse reactions to vaccines as a “new case” under 29 C.F.R. 1904.6.

These key takeaways for employers are explained more fully in this article:

  • Employers may require COVID-19 vaccines but must offer reasonable accommodations in accordance with Title VII and the Americans with Disabilities Act (“ADA”), including for sincerely held religious beliefs, disability, pregnancy, and immunocompromised employees;
  • Reasonable accommodation requests may come from fully vaccinated employees or non-vaccinated employees:
  • Employers may require employees to provide documentation showing vaccination status and must keep all information confidential in compliance with the ADA;
  • If an employer or its agent is administering the vaccine to employees, the ADA’s restrictions apply to any pre-vaccination screening questions, but the pre-screening questions are not subject to the Genetic Information Nondiscrimination Act (“GINA”);
  • Employers may offer incentives to employees who are fully vaccinated and may distribute information about vaccinations;
  • OSHA has suspended its requirement that employers record adverse reactions to the COVID-19 vaccine through May 2022 and will re-evaluate the requirement at that time.

EEOC Guidance on Mandatory Vaccination Policies

The updated guidance confirms that federal Equal Employment Opportunity (“EEO”) laws allow employers to mandate that their employees be vaccinated as a condition of returning to the physical workplace. This requirement is subject to other applicable laws and considerations such as reasonable accommodations under Title VII and the ADA, namely for disabilities or sincerely held religious beliefs.

The EEOC guidance does not differentiate between employees who get vaccinated on their own and those who receive a vaccination from their employer or its agent.

The guidance provides support for employers navigating scenarios in which an employee does not want to get vaccinated for a medical or religious reason. For example, it addresses how an employer should assess whether an unvaccinated individual with a disability can be excluded from physically returning to the workplace using the “direct threat” analysis set forth by the ADA. The analysis requires the employer to “make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job” using the following factors:

  • Whether the employee works alone or with other employees;
  • The frequency and duration of direct interaction with employees or non-employees;
  • Whether the employee works inside or outside;
  • The available ventilation;
  • The number of partially or fully vaccinated individuals in the workplace;
  • Whether other employees are wearing masks;
  • Whether other employees are undergoing routine COVID-19 testing; and
  • Whether the workplace is conducive to social distancing.

The EEOC also provided the following list of possible reasonable accommodations for employees with disabilities:

  • Wearing a mask;
  • Social distancing;
  • Working a modified/staggered shift;
  • Making changes to the work environment including but not limited to improving the ventilation systems or limiting contact with other individuals;
  • Requiring periodic COVID-19 testing;
  • Allowing the employee to telework if possible; or
  • Accepting a reassignment, for example to a vacant position in a different workspace.

When assessing whether an accommodation would impose an undue hardship on an employer, the employer should “consider all the options before denying an accommodation request.” This evaluation requires an employer to consider whether teleworking is an option and to reserve reassignment as a last resort. In addition, the percentage of partially or fully vaccinated employees in the workplace and the extent of contact with unvaccinated non-employees—or individuals with an unknown vaccination status—should be factored into the undue hardship analysis.

Accommodations for disabilities also include pregnancy-related disabilities. In addition, the updated guidance cautions that similar accommodations may be required for employees who may not qualify as having a pregnancy-related disability, but are not vaccinated due to pregnancy. The EEOC emphasized that pregnant employees may not be discriminated against, stating “a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.”

The guidance for religious accommodations states that “[o]nce an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.” Typically, accommodations for sincerely held religious beliefs are assessed using a similar, but less stringent, undue hardship analysis than the standard used pursuant to the ADA. However, here, the guidance dictates that the “requests should be processed according to the same standards that apply to other accommodation requests.” As such, the EEOC lists the same above-referenced considerations for the undue hardship analysis.

The EEOC predicts that accommodations for sincerely held religious beliefs will include requests to “wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee.” The guidance encourages employers to check federal, state, and local laws before taking an adverse employment action against an employee who cannot be reasonably accommodated.

Importantly, employers need to recognize that fully vaccinated employees may still be entitled to reasonable accommodations if, for example, the vaccine would not provide them with the same measure of protection due to their immune system being compromised. Employers, therefore, must take care to apply the reasonable accommodation analysis to all employee requests, understanding that the considerations will vary by employee.

The EEOC reminds employers that the ADA prohibits disclosure that an employee is receiving a reasonable accommodation, or retaliation against an employee for requesting one.

EEOC Guidance on Incentives for Voluntary Vaccinations

The guidance for incentives for voluntary vaccinations is split into the following two categories: (1) employees who get vaccinated on their own and provide proof to their employer and (2) employees who receive a voluntary vaccination administered by the employer or agent of the employer.

Employers may provide more expansive incentives for employees who are simply disclosing their vaccination status after receiving a vaccine from a third-party administrator.

However, for the latter scenario in which the employer or its agent administers the vaccine, the incentive must not be “so substantial as to be coercive.” The guidance primarily focuses on the second category of employees because the administration of a vaccine often requires the disclosure of other protected medical information. Therefore, an employer who offers an incentive that appears to be coercive may violate the ADA by presumptively placing undue pressure on an employee to disclose such information.

Employers may not provide incentives for an employees’ family member to get vaccinated, but may otherwise offer to vaccinate an employees’ family member without an incentive.

The EEOC also clarifies that an employer incentivizing an employee to disclose their vaccination status does not constitute a disability-related inquiry under the ADA or a violation of GINA. Notably, the incentive can be in the form of a reward or a penalty.

Other Considerations Raised by the EEOC

Employers must keep COVID-19 vaccination records confidential, as the ADA deems an employees’ vaccination status confidential. Accordingly, as with all medical information, employee vaccination records must be kept separate from employees’ personnel files.

The EEOC provides educational materials for employers to offer to employees concerning vaccinations and other COVID-19-related considerations.  

Employers should apply vaccination policies in a manner that treats employees equally, taking into consideration the disproportionate administration rates and availability of the vaccine across different states and communities.

While the EEOC’s guidance was published on May 28, 2021 it was drafted prior to the CDC’s issuance of updated guidance for fully vaccinated individuals on May 13, 2021. As such, the EEOC will continue to update its guidance accordingly.

Updated OSHA Guidance

Effective May 21, 2021, OSHA suspended its guidance concerning the recordability of adverse reactions to the COVID-19 vaccine through May 2022. The guidance was broken into the following two categories: (1) employers who require vaccination as a condition of employment and (2) employers who do not require vaccination as a condition of employment.

For employers falling into the first category, an employees’ adverse reaction was recordable if it constituted a “new case” as defined under 29 C.F.R. 1904.6 as well as the general recording criteria set forth in 29 C.F.R. 1904.7.

If an employer does not require a vaccination, an adverse reaction to a vaccination was not recordable, even if the employer encouraged their employees to get vaccinated.

These recordation requirements were removed from the OSHA guidance and replaced with the following message:

Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log?

DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

It is evident the change is a result of the previous guidance being construed as disincentivizing vaccinations and mandatory vaccination policies.

Lastly, following the CDC’s May 13, 2021 revised guidance, OSHA updated their Coronavirus Disease (COVID-19) web page with the following message, suggesting another change is on the horizon: “OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

Fifteen months into the pandemic, employers know that federal and state laws related to COVID-19 are constantly changing and in flux. Employers should closely monitor the laws in the states in which they do business, because state laws are not necessarily consistent with EEOC and OSHA guidance. We recommend that employers consult with their internal or external employment law counsel to ensure that company policies are up to date and fully comply with current federal and state law. Montgomery McCracken’s Labor and Employment Department is available and eager to work with employers on these novel and challenging employment issues.