EEOC issues further guidance authorizing vaccine mandates and vaccine inquiries in the private workplace

The EEOC issued further guidance (Q&A K.1-K.18) updating its previous guidance regarding vaccines, vaccine mandates and vaccine inquiries in the workplace. This new guidance clarifies and confirms that the federal EEO laws overseen by the EEOC (Title VII, ADA, etc.) do not prohibit an employer from

  • Imposing a vaccine mandate as a condition of entry into the workplace,
  • Offering an incentive to employees in exchange for being vaccinated,
    • Again though the EEOC cautioned without explaining that the amount cannot be so high as to be “coercive,”
      • The EEOC added the following cryptic sentence to this caution: “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.” It isn’t entirely clear whether the EEOC meant that sentence to explain what it meant by “coercive.” In other words, is the only standard for measuring “coercive” whether the amount is so high it would cause a (reasonable?) employee to “feel pressured to disclose protected medical information”?
  • Informing employees about vaccines and even encouraging employees to become vaccinated,
  • Asking employees if they have been vaccinated or requiring employees to provide proof of vaccination. The EEOC confirms these are not medical inquiries protected by the ADA. However the EEOC cautions answers should be kept confidential.

The EEOC noted that it does not have jurisdiction over all laws that might be applicable to vaccinations in the workplace. For example, state and local laws may (and in at least Texas and Montana at this time do) conflict at least to some extent with even President Biden’s recent mandates. Almost all of these issues are already being litigated throughout the country.

The EEOC continues to remind employers that workers may be entitled to reasonable accommodations, possibly including exemption from vaccine-related mandates and inquiries. For example, a worker who requires an exemption from a vaccine mandate that is imposed as a condition of entry into the workplace may be able to enter the workplace by wearing a mask, working a staggered shift, after changes to the workplace itself such as increasing ventilation, or may be entitled telework “if feasible,” or reassignment “to a vacant position in a different workspace.” Unfortunately the EEOC’s conclusory guidance continues to lack any meaningful specifics or feasible instruction for how this kind of analysis will be conducted. To the contrary the EEOC continues to insist that the decision be made as “an individualized assessment” for each such individual and that the assessment “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.”

The EEOC also reminded employers that some workers may not be able to be vaccinated for medical reasons and discussed in particular concerns that pregnant workers might have. “Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.”

Texas joins Montana in conflict against Biden vaccine mandates

By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, especially in Texas. Hopefully litigation will strike the state bans (or clearly rule, in reverse, that they somehow supersede the Biden mandates), so that employers (and employees) have clarity as to vaccine-related rights and obligations in these states; however, until and unless that occurs, these state laws are likely to create significant confusion as each law leaves significant room for partial compliance with the federal mandates.

The Texas Governor’s Executive Order is likely to be followed by a new statute from its legislature. Indeed, the Governor has already added it to the legislature’s agenda in an upcoming special session. Until then, it provides, as follows:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Thus, unless modified by the legislature in its upcoming special session, it appears that while Texas’ new law does apply to private employers, it does not prohibit them from complying with the Biden mandates. Rather, it expands an employee’s ability to demand exemption from a mandate. It is anticipated that all of the Biden mandates will likely permit reasonable accommodations, including exemptions, on the basis of religion and disability. This new Texas law appears to simply add/expand exemptions in Texas on the basis of “personal conscience” or “medical reasons, including prior recovery from COVID-19.” It is not clear how these compare to religion or disability. Is “personal conscience” broader than the already broad definition of “religion”? Are “medical reasons, including prior recovery from COVID-19” broader than “disability”?

The Montana ban flows from its legislature’s new law, House Bill 702. The Montana law adds “vaccination status” and a “vaccine passport” to its state’s EEO law’s definition of protected classes (along with race, etc.). It defines the phrase “vaccine passport” to include as an example a vaccine card. How does the Montana law square up to the Biden mandates? In its FAQ dated 9/29/2021, Montana dodges the question saying that, until the new OSHA rule comes out, its law is “in effect,” without explaining what that means.

The Montana law is already subject to multiple lawsuits seeking to strike it down. The Texas bill is sure to be challenged shortly in the courts.

Hopefully employers will soon obtain clarity from courts in these states. Until then, employers in both states (and any other state that joins this pool of confusion) should realize that neither Texas nor Montana’s state law flatly prohibits compliance with the Biden mandates. They may simply limit how or to what extent compliance is possible. Still both are clearly in direct enough conflict with the Biden mandates, it is likely courts will have to clarify these issues.

Great time speaking at Denver Startup Week today!

Thank you #DENStartupWeek for a great time this afternoon speaking on employment law tips and to-do’s for startups! Thank you to the awesome audience members for all your questions and the positive feedback.

As Denver Startup Week explains, “Built by the community for the community, Denver Startup Week is a celebration of everything entrepreneurial in Denver and is the largest free event of its kind.”

CDLE, again, reminds Colorado employers that 80-hour pandemic leave remains in effect

On September 30, 2021, the federal tax credit that allowed employers to pass through the costs of pandemic/80-hour leave.  Also on September 30, 2021, the CDLE reminded, again, Colorado employers in an email that Colorado state law continues to mandate that the 80-hour/pandemic leave (“PHEW” leave) be provided at least until November 15, 2021 while the federal emergency declaration remains in effect (plus the 4-week tail required by Colorado state law); in other words, Colorado state law continues to require that the leave be provided, even though the federal tax credit is no longer available.  Here is the CDLE’s email:

Coloradans Are Still Entitled To Employer Provided Covid-Related Paid Sick Leave While Federal Public Health Emergency Remains In Effect

Under the Healthy Families and Workplaces Act (HFWA), Coloradans can take up to 80 hours of paid leave in 2021 for any COVID-related needs. This includes not only having COVID-19, but also going to get a COVID-19 test or vaccine, recovering from any vaccine side effects, following a mandatory quarantine, or caring for a family member with any of those needs.

Colorado’s 80-hour COVID-related leave continues as long as a COVID-related emergency remains “declared by a federal, state, or local public health agency” (C.R.S. 8-13.3-402(9)), and the federal COVID-19 emergency is ongoing. The latest declaration extends through October 18, 2021.

HFWA continues the right to COVID-related leave “until four weeks after” all applicable public health emergencies end or are suspended. That means the earliest possible end date of Coloradans’ HFWA right to 80-hour COVID-related leave is November 15, 2021. However, the Biden administration has publicly stated that the federal emergency declaration will likely extend through year’s end.

For more information on paid sick leave, please see the CDLE Division of Labor Standards and Statistics’ fact sheets, INFOs #6B and 6C. You may also call the Division of Labor Standards and Statistics at 303-318-8441.