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.”