A Return to the Old Normal: Can My Employer Require Me to Get Vaccinated Before I Return to the Office? The EEOC Says Yes.

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance regarding COVID-19 as it relates to certain federal employment anti-discrimination laws. The EEOC is the federal agency charged with the oversight of a number of the nation’s employment anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Genetic Information Non-discrimination Act (GINA) and Title VII of the Civil Rights Act of 1964. This updated guidance covers issues relating to employers’ mandatory vaccination policies and accommodating employees who may be unable to obtain a vaccination for certain reasons.

The EEOC concluded that an employer can mandate all its employees physically entering the workplace to be vaccinated for COVID-19. However, employers are still required to enforce this workplace policy in a non-discriminatory manner, i.e., in a way that does not treat employees differently based on their disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information. For example, an employer is required to reasonably accommodate an employee who, because of a disability, pregnancy or a sincerely held religious belief, did not or cannot get vaccinated for COVID-19, unless providing such an accommodation would pose an undue hardship on the operation of the employer’s business.

An employee who is unable to obtain a vaccination due to a protected characteristic, such as disability, pregnancy or a sincerely held religious belief, should contact their employer to engage in the interactive process and discuss potential reasonable accommodations. An employee who is unable to obtain the COVID-19 vaccine due to a protected characteristic may be entitled to reasonable accommodations such as allowing the unvaccinated employee to wear a face mask when entering the workplace, working at a social distance from coworkers or non-employees, working a modified schedule, being given the opportunity to telework, and/or being reassignment to a different workplace/position.

An employer is also required to accommodate employees who face greater barriers to receiving a COVID-19 vaccine, for example, due to limited access to the vaccines, as these individuals may be disproportionately impacted by a mandatory vaccination requirement based on their protected characteristics, such as race, age or disability.

An employee who is fully vaccinated for COVID-19 may also request an accommodation based on a continuing concern for heightened risk of severe illness from a COVID-19 infection. For example, an immunocompromised employee may be at continued heightened risk for a severe infection from COVID-19 despite being vaccinated and may require reasonable accommodations from a mandatory reporting requirement. Under these circumstances, the employer is still obligated to engage in the interactive process with such an employee regarding potential reasonable accommodations.

The EEOC further outlined that an employer may lawfully require an employee to disclose his or her COVID-19 vaccination status and/or request proof of vaccination from a third party (such as a pharmacy or personal physician) as long as the employer treats an employee’s medical documentation or other confirmation of vaccination as confidential medical information.

Interestingly, the EEOC’s guidance notwithstanding, the federal government has recently cautioned that “COVID-19 vaccination should generally not be [required for their] employees or contractors … to work in person” at federal facilities, and “agencies should not require [their] employees or contractors to disclose their vaccination status.” Federal agencies may ask employees to voluntarily disclose their vaccination status. If an employee voluntarily discloses that he or she is unvaccinated, the agency may use this information to implement CDC-recommended mitigation measures, including masking and physical distancing. The vaccination requirements continue to evolve, and as such, federal employees are encouraged to keep abreast of their individual agency’s policy on this issue and immediately request a reasonable accommodation, if needed. It is, however, anomalous for the Administration to issue guidance on an issue as important as vaccination requirements that is inconsistent with guidance issued by one of its primary enforcement agencies.

Aside from the EEOC guidance, it should be noted that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not protect an employee from having to disclose his or her vaccination status to an employer. HIPAA only prevents certain covered entities, such as insurance providers, healthcare clearinghouses, and healthcare providers and their business associates, from sharing identifying health information without the affected individual’s consent. Therefore, an employer’s request for information concerning an employee’s COVID-19 vaccination status is not covered by this federal statute. Of course, there may be state or local laws and regulations that may prevent an employer from seeking an employee’s COVID-19 vaccination status.

If you have questions about reasonable accommodations, or you are concerned that your employer is not properly administering its return-to-work policy, please contact the experienced employment attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C.