Tag Archives: EEOC guidance on COVID-19

Yes, Your Employer Can Require You To Be Vaccinated, According to a Federal Judge in Texas

Contributed By: John R. Hayes, June 14, 2021

A federal judge in Texas on June 12, 2021 dismissed a lawsuit brought by Texas health care workers challenging their hospital’s COVID-19 vaccine mandate. The scathing opinion by U.S. District Judge Lynn N. Hughes left no doubt that he believed the claims of the 117 plaintiffs were without merit.

The lawsuit was brought by employees of Houston Methodist Hospital, who had refused the vaccine, after the hospital in April announced a policy requiring  vaccination of all employees.  In early June, over 170 employees of the hospital were suspended for two weeks without pay over their decision to refuse getting the COVID-19 vaccine. If these employees did not get vaccinated within two weeks then they would be terminated. At the time of the filing, almost 25,000 Hospital employees had complied with the vaccination requirement, and approximately 285 employees had received medical or religious exemptions. 

The employees refusing the vaccine claimed that the policy of the hospital requiring the COVID-19 vaccine of its employees was an effort to coerce them into becoming test subjects for an untested and unreliable vaccine. Echoing a refrain made by many who are refusing the vaccine, the plaintiffs argued that the lack of full approval by the Food and Drug Administration (FDA), justified their refusal to get vaccinated. While not yet granting full approval for the three vaccines in the United States, the FDA has granted emergency use authorization for the vaccines, and approximately 173 million Americans have received at least one dose, with over 143 million being fully vaccinated.

In his opinion, Judge Hughes found that the plaintiffs were not “coerced” to get the vaccine, and that public policy clearly supports widespread inoculation efforts. Specifically, the court said that lead plaintiff and nurse Jennifer Bridges’ claims that the vaccines are “experimental and dangerous” were “false” and “irrelevant.”  He went on to say Bridges’ argument that the vaccine requirement equates to medical experimentation in Nazi concentration camps was “reprehensible.” 

Further explaining that the employees were not coerced, Judge Hughes stated that the hospital “is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Calling it “all part of the bargain” between a worker and their employer, the court stated “every employment includes limits on the worker’s behavior in exchange for his renumeration.”   

While the focus of the opinion was on Texas law regarding wrongful discharge, it appears to be the first of its kind regarding vaccine mandates, and has implications nationwide.  Judge Hughes cited to the Equal Employment Opportunity Commission’s (EEOC) updated May 28, 2021 guidance that employers can require employees to be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. He further stated that while this guidance is not binding “it is advice about the position one is likely to meet at the Commission.” 

The lawyer for the plaintiffs stated he planned to pursue an appeal.

Ultimately, the decision whether or not to mandate vaccination of its employees is up to the individual employer. While some hospital systems and other health care institutions such as nursing homes and home health care providers in the country are moving to require COVID-19 shots, many private employers have not yet taken that step. And although the EEOC has said employers can require vaccines, subject to certain exemptions, there still remain questions on the legality of doing so, as evidenced by this lawsuit. Any workplace vaccination policy—whether a mandate or one that provides incentives to get the shot—should be carefully considered in advance, ideally vetted by experienced employment counsel. 

We are continuing to monitor this evolving situation, and will update our blog with any new developments.

EEOC Issues Updated Guidance Addressing COVID-19 Vaccine Incentives Among Other Issues

Contributed By Steven Jados, May 28, 2021

Medicine doctor and vaccine dose

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.

Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a vaccination administered by the employer or its agent.

As to the first scenario, the EEOC’s guidance says little more than that requesting proof of vaccination is not a disability-related inquiry covered by the Americans with Disabilities Act (ADA), and also does not seek information protected by the Genetic Information Nondiscrimination Act (GINA), and therefore employers may offer incentives to employees who provide proof that they were vaccinated. 

The guidance for the second scenario is a bit more detailed. It states that incentives may be offered, so long as the incentive (whether it is a reward or penalty) “is not so substantial as to be coercive.” The difference between the first and second scenarios is that in the second scenario, employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination inquiry. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

The EEOC’s guidance is that the incentive limitation in the second scenario does not apply to the first scenario—because the first scenario is just asking for proof of vaccination status, which is not a disability-related inquiry in the EEOC’s eyes. However, we recommend caution in providing large incentives in first scenario circumstances, too, given the recency of this EEOC guidance, and the thorny issues and litigation risks that can arise with respect to incentive programs that touch on employee health and medical information.

On the subject of mandatory vaccines, the EEOC’s updated guidance makes clear 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 reasonable accommodation and other EEO considerations. The guidance includes expanded advice for responding to employees who do not want to be vaccinated due to medical or religious reasons or because of pregnancy. (A word of caution: federal EEO laws are not the only game in town, and there is a possibility that other laws could prohibit employers from imposing mandatory vaccine policies—so be careful.)

The EEOC’s next piece of guidance should not come as a surprise to our loyal readers: employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.

The EEOC’s updated guidance also includes several links to resources available for employers to educate their employees about COVID-19 vaccinations and related issues.

As discussed above, issues relating to vaccine incentives—and really any issue relating to COVID-19 vaccines in the workplace—can get thorny very quickly. With that in mind, we recommend engaging experienced employment counsel before wading too deep into these issues.

Can I Ask My Employees If They Have Been Vaccinated?

Male doctor hand wears medical glove holding syringe and vial bottle with COVID-19 vaccine

Contributed by Heather A. Bailey, April 6, 2021

The short answer is: Be careful what you wish for!  During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination.  For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax.  This is different from someone not getting vaccinated due to a disability or religious belief.  Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context.  The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory,  you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

  • Again, be careful what you wish for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
  • You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
  • When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
  • If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question). 

EEOC Updates COVID-19/ADA Guidance As We Move Toward Reopening the Economy

Contributed by Carlos Arévalo and Suzanne Newcomb, April 17, 2020

Back on March 18th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures.  Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance.  Uncertainty abounds as to whether it will be business as usual or a new normal.  Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard. 

The EEOC’s updated guidance addresses the following areas (new and revised information in bold):

Disability-Related Inquiries and Medical Exams

  • Our prior guidance regarding questioning employees about COVID-19 symptoms, measuring temperature, requiring employees with symptoms to stay at home and asking them to provide doctor’s notes is unchanged.
  • Employers can still ask employees to disclose whether they are experiencing COVID-19 symptoms.  The list of symptoms has been expanded, and may continue to expand, as experts learn more (symptoms now include loss of smell/taste and gastrointestinal problems).
  • As the burden on health care providers is lightened, it will become easier to require employees to provide doctors notes and fitness-for-duty documentation.  Of course, as we recommended before, employers should follow CDC and WHO guidelines on this issue.

Confidentiality of Medical Information

  • Consistent with the ADA and our prior guidance, any medical information, including temperature checks, must be kept confidential and stored in employee’s medical files (kept separately from personnel files).
  • Information may be disclosed to local public health agencies.
  • Staffing agencies may disclose information of any affected individual to employers.

Hiring and Onboarding guidance

  • When hiring, employers may continue to screen or conduct medical examinations following a conditional offer, bearing in mind that candidates may still be asymptomatic.
  • Start dates may be delayed.
  • Offers may be withdrawn if an individual is unable to start right away as a result of a COVID-19 diagnosis or symptoms.

Reasonable Accommodation

  • Individuals might require accommodation because their disability makes them particularly vulnerable to COVID-19. This could give rise to new forms of accommodations. Examples given include one way aisles and plexiglass or other physical barriers to provide protection and/or ensure distancing.  
  • Pandemic might exacerbate some disabilities such as anxiety, OCD and PTSD.
  • The duty to provide reasonable accommodation can extend to any work environment.
  • Temporary changes prompted by the pandemic (including work from home) can give rise to (or eliminate) the need for reasonable accommodation or alter the effectiveness of an accommodation provided previously.
  • Employees can still be asked to substantiate disability and need for accommodation.
  • As always, engage with employees to assess accommodation needs and undue hardship on a case by case basis, given the particular circumstances. 

Pandemic-Related Harassment

  • Harassment based on an individual’s race or national origin, or other legally protected characteristic, must not be tolerated. Enough said.

Furloughs and Layoffs

  • Reminder that special rules apply when severance or other benefits are offered to a group of employees in exchange for a release – a reference to the OWBPA requirements for group terminations. The law here has not changed.

Return to Work

  • As stay-at-home orders or other restrictions are lifted, employers will still be able to take action pursuant to EEOC, CDC and/or state health officials’ guidance.
  • Disability-related inquiries and medical exams will be appropriate if job-related and consistent with business necessity.
  • As with any ADA analysis, employers will be able to exclude employees with medical conditions that pose a direct threat to the health or safety of others.
  • Employers will need to review CDC guidelines with respect to returning employees, including those deemed “critical workers.” 
  • Employers will need to work with returning employees about protective equipment requirements and infection control practices.
  • Employers will need to engage in the interactive process with any employees seeking ADA reasonable accommodations regarding protective equipment, i.e. non-latex gloves, modified facemasks, or religious accommodations under Title VII (modified equipment due to religious garb).