EEOC Issues Additional Return To Work COVID Guidance
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Alert
As the country emerges from the COVID-19 pandemic, more and more employers are requiring employees to physically return to work. This re-entry to the workplace presents many vexing questions for employers. On May 28, 2021, the Equal Employment Opportunity Commission issued additional guidance to employers pertaining to COVID-related guidance. Of particular note, the EEOC clarified that:
· Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA. For example, each law requires an employer to provide reasonable accommodations for employees who do not obtain the COVID-19 vaccine because of a disability or a sincerely held religious belief, practice, or observance, unless providing such an accommodation would pose an undue hardship on the operation of the employer’s business.
· A reasonable accommodation may include an unvaccinated employee wearing a face mask in the workplace, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, having the opportunity to telework, or accepting a reassignment. Employees who are not vaccinated because of pregnancy may be also be entitled (under Title VII) to accommodations, similar to those based on disability or religion, to keep working, if the employer makes modifications or exceptions for other employees.
· Employers may encourage employees and their family members to be vaccinated without violating EEO laws, including educating employees about the benefits of vaccines, or providing incentives for being vaccinated.
· Information about an employee's COVID-19 vaccination is confidential medical information under the ADA and must be maintained as confidential by the employer.
· If an employee does not get vaccinated because of a disability, the employer may not require vaccination for that employee unless it can demonstrate that the individual would pose a "direct threat," or "significant risk of substantial harm" to the health or safety of the employee or others in the workplace that cannot be eliminated or reduced by reasonable accommodation.
· An employer may ask employees whether they have obtained a COVID-19 vaccine from a third party without it being a "disability-related inquiry" under the ADA, or violating Title II of GINA. However, again, documentation or confirmation of vaccination provided by the employee is considered medical information and must be kept confidential by the employer.
· An employer may still be required to accommodate an employee who is fully vaccinated, but because of heightened risks has remaining concerns of COVID-19 infection, in accordance with applicable ADA standards.
· An employer administered vaccination program may not, as part of pre-vaccination medical screening, ask questions about the employee's genetic information, such as asking about the employee's family's medical history. An employer also may not offer an incentive for an employee's family member to be vaccinated by an employer or its' agent, because such incentive would involve obtaining genetic information as part of pre-vaccination screening, in violation of GINA. An employer may offer vaccinations to an employee's family members if it takes certain steps to comply with GINA.
A link to the EEOC's complete guidance may be found here:
For any questions or concerns relating to guidance for employees re-entering the workplace, please contact:
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