Gibson Dunn | EEOC Updates Technical Assistance on COVID-19 Vaccinations

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June 1, 2021

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On Friday, Could 28, 2021, the EEOC up to date its technical help on vaccinations (the “Steerage”). Amongst different gadgets summarized under, the Steerage states that employers might mandate vaccines beneath federal EEO legal guidelines, explains the right way to resolve requests for lodging from workers who can’t be vaccinated for a protected cause beneath Title VII of the Civil Rights Act of 1964 (“Title VII”) or the Individuals with Disabilities Act (“ADA”), and clarifies that employers might request documentation of vaccination.

Employer-Mandated Vaccination

Though the EEOC’s earlier steerage from December 16, 2020, strongly implied that employers might mandate vaccines, this up to date Steerage clearly states that nothing within the EEO legal guidelines prevents an “employer from requiring all workers bodily getting into the office to be vaccinated for COVID-19, topic to the affordable lodging provisions of Title VII and the ADA and different EEO issues.” That is true whether or not the worker receives the vaccine from the employer or a 3rd occasion, though if the employer or its agent gives vaccines pursuant to a mandatory-vaccination coverage, the employer might solely ask pre-vaccination screening questions if it has “an inexpensive perception, based mostly on goal proof, that an worker who doesn’t reply the questions and, due to this fact, can’t be vaccinated, will pose a direct menace to the worker’s personal well being or security or to the well being and security of others within the office.”

Employers can also require affirmation, together with documentation, of vaccination, however beneath the ADA, “documentation or different affirmation of vaccination supplied by the worker to the employer is medical details about the worker and should be stored confidential” and maintained in a separate location from the workers’ personnel recordsdata. The Steerage doesn’t handle state knowledge privateness legal guidelines and necessities, which can impose extra obligations.

The Steerage explains that when deciding on and implementing a vaccination coverage, employers ought to be aware that, “as a result of some people or demographic teams might face better obstacles to receiving a COVID-19 vaccination than others, some workers could also be extra prone to be negatively impacted by a vaccination requirement.” An employer might not undertake a vaccination coverage that discriminates on the idea of any protected attribute.

When introducing a vaccination coverage, employers ought to, “as a greatest observe,” notify workers that they could request an lodging if they’re unable to be vaccinated as a consequence of a incapacity or non secular perception, observe, or observance. Managers and/or supervisors tasked with implementing the vaccination coverage ought to know the right way to acknowledge an lodging request (which doesn’t require workers to make use of any specific verbiage) and will know to whom any requests ought to be referred for decision.

Lodging Course of beneath the ADA and Title VII

Below the ADA, if an worker can’t be vaccinated as a consequence of a incapacity, the employer might not “require compliance” from the worker except “the person would pose a ‘direct menace’ to the well being or security of the worker or others within the office.” To find out whether or not the person is a direct menace, the employer should “make an individualized evaluation of the worker’s current skill to soundly carry out the important capabilities of the job,” based mostly on “(1) the period of the chance; (2) the character and severity of the potential hurt; (3) the chance that the potential hurt will happen; and (4) the imminence of the potential hurt.”

The direct menace evaluation “ought to be based mostly on an inexpensive medical judgment that depends on probably the most present medical data about COVID-19.” The Steerage identifies the next as related as to whether an unvaccinated worker would current a direct menace:

  • “the extent of group unfold on the time of the evaluation”;
  • “the kind of work surroundings,” together with:
    • “whether or not the worker works alone or with others”;
    • whether or not the worker works inside or exterior;
    • out there air flow;
    • “the frequency and period of direct interplay the worker sometimes may have with different workers and/or non-employees”;
    • “the variety of partially or absolutely vaccinated people already within the office”;
    • “whether or not different workers are sporting masks or present process routine screening testing”; and
    • “the area out there for social distancing.”

If the employer determines that the unvaccinated worker would current a direct menace to others or themselves, the employer should decide whether or not there’s a affordable lodging for the worker. Potential affordable lodging embrace the next:

  • Requiring the worker to
    • put on a masks;
    • work a staggered shift;
    • work at a distance from coworkers or non-employees; and/or
    • get periodic checks for COVID-19
  • “making adjustments within the work surroundings (resembling enhancing air flow techniques or limiting contact with different workers and non-employees )”;
  • “allowing telework if possible”; or
  • “reassigning the worker to a vacant place in a unique workspace.”

An lodging request might solely be denied if there is no such thing as a lodging choice that “doesn’t pose an undue hardship, which means [under the ADA] a big problem or expense.” As with the direct menace evaluation, “[e]mployers might depend on CDC suggestions when deciding whether or not an efficient lodging is out there that will not pose an undue hardship.” The undue-hardship evaluation ought to contemplate the “proportion of workers within the office who already are partially or absolutely vaccinated in opposition to COVID-19” and the “extent of worker contact with non-employees, who could also be ineligible for a vaccination or whose vaccination standing could also be unknown.”

The Steerage means that the employer’s first choice ought to be an lodging that will “enable the unvaccinated worker to be bodily current to carry out his or her present job with out posing a direct menace.” If no such choice is feasible, the employer “should contemplate if telework is an choice for that individual job as an lodging” and, as a “final resort,” decide “whether or not reassignment to a different place is feasible.”

Employers should additionally present affordable lodging for workers who can’t be vaccinated as a consequence of “an worker’s sincerely held non secular perception, observe, or observance” and should accomplish that “in keeping with the identical requirements that apply to different lodging requests.” The Steerage notes that “the definition of faith is broad and protects beliefs, practices, and observances with which the employer could also be unfamiliar” and that “the employer ought to ordinarily assume that an worker’s request for non secular lodging is predicated on a sincerely held non secular perception, observe, or observance,” except the employer has an goal foundation to query the sincerity or non secular nature of an worker’s lodging request. Below Title VII, employers usually are not required to accommodate workers who’re unable to be vaccinated as a consequence of non secular beliefs, practices, or observances if doing so would impose “greater than minimal value or burden on the employer,” which “is a better customary for employers to fulfill than the ADA’s undue hardship customary.”

Lastly, the Steerage explains that workers who “search job changes” or request exemptions from a vaccination requirement as a consequence of being pregnant “could also be entitled to job modifications, together with telework, adjustments to work schedules or assignments, and depart to the extent such modifications are supplied for different workers who’re comparable of their skill or lack of ability to work.”

Incentives

Employers might “supply an incentive to workers to voluntarily present documentation or different affirmation that they obtained a vaccination on their very own from a pharmacy, public well being division, or different well being care supplier in the neighborhood.” The employer can also supply an incentive for workers to obtain a vaccination from the employer or its agent, however provided that vaccination is voluntary. That is due to the “pre-vaccination disability-related screening questions” that accompany the vaccine, which employers typically can not compel their workers to reply. Subsequently, if the employer (or its agent) gives the vaccine, the employer might not supply such a big incentive that workers would really feel “pressured to reveal protected medical data” to the employer in reference to these  screening questions.

Employers additionally might not supply incentives for workers’ relations to obtain the vaccine from the employer or its agent, once more due to the pre-screening questions, which might result in the employer’s receipt of genetic data within the type of household medical historical past of the worker. However employers might (1) present vaccines to workers’ relations with out providing any incentive or (2) supply incentives “to workers to offer documentation or different affirmation from a 3rd occasion not performing on the employer’s behalf, resembling a pharmacy or well being division, that workers or their relations have been vaccinated.”

Emergency Use Authorization

The Steerage now not references the obligations of the Meals and Drug Administration (“FDA”) with regard to the Emergency Use Authorization (“EUA”) standing of the COVID-19 vaccines. Beforehand, the EEOC had indicated that the FDA had an obligation to make sure recipients of the vaccine obtained knowledgeable consent, but it surely now states that it “is past the EEOC’s jurisdiction to debate the authorized implications of EUA or the FDA strategy.”


Gibson Dunn attorneys can be found to help in addressing any questions you will have about these developments.  Please contact the Gibson Dunn lawyer with whom you often work, any member of the agency’s Labor and Employment observe group, or the next authors:

Jessica Brown – Denver (+1 303-298-5944, jbrown@gibsondunn.com)
Hannah Regan-Smith – Denver (+1 303-298-5761, hregan-smith@gibsondunn.com)

Please additionally be happy to contact the next observe leaders:

Jason C. Schwartz – Co-Chair, Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)
Katherine V.A. Smith – Co-Chair, Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

© 2021 Gibson, Dunn & Crutcher LLP

Lawyer Promoting:  The enclosed supplies have been ready for common informational functions solely and usually are not meant as authorized recommendation.

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