EEOC Clarifies COVID-19 Vaccination Rules for the Workplace

On May 28, 2021, the EEOC updated and expanded technical assistance concerning vaccinations in the employment context. The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 (and wear masks), so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations (i.e., disability, sincere religious belief and pregnant workers).
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. 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.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

The American Rescue Plan – What Employers Need to Know

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“Rescue Plan”) and President Biden signed it into law the following day.  The Rescue Plan includes several provisions that directly impact the workplace.  These provisions are summarized below:

  • Extends the Families First Act Coronavirus Response Act’s (“FFCRA”) optional COVID-19 paid leave benefits through 9/30/2021.  Covered employers (less than 500 employees) may, but are not required, to offer these benefits.  Those that do are entitled to a tax credit to offset the cost of providing this paid leave  
  • Expands FFCRA benefits in the following ways, effective 4/1/2021:
    • Provides emergency paid sick leave (“EPSL”) for the following additional qualifying reasons: (i) obtaining a COVID-19 immunization or recovering from a medical condition related to such an immunization; and (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 when an employee has been exposed to COIVID-19 or the employer has requested such test or diagnosis
    • Provides an additional 10 days of EPSL
    • Expands the reasons for qualifying for paid emergency FMLA leave (“EFML”) to include any of the reasons that would qualify for EPSL (including the 2 new EPSL reasons set forth above). Before this expansion, EFML was only available if the employee was unable to work (or telework) to care for a child whose school or place of care was closed or unavailable due to the public health emergency
    • Removes the 2-week waiting period to qualify for EFML
    • Raises the aggregate cap on EFML from $10,000 to $12,000
  • Requires employers that voluntarily provide these benefits to do so in a uniform manner without discriminating against certain categories of workers
  • Extends the unemployment benefits under the CARES and Consolidated Appropriations Acts through 9/6/2021, with additional tax benefits for some individuals
  • Provides a 100% COBRA premium subsidy effective April 1-Sept. 2021 for employees involuntarily terminated who want to remain on their employer’s health insurance     

We will provide further updates after the Department of Labor issues guidance to address the implementation of these provisions.  If your organization operates outside of AZ, you should check state law to determine if there are additional state or local laws that mandate paid leave or other benefits related to the pandemic. 

FOLLOW-UP: Employer-Mandated Vaccines – Legal?

On December 16, 2020, the EEOC issued updated guidance on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA).

The high-level takeaways from the guidance are:

  1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below);
  2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence.
  3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary.
  4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee.

An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.

Employer-Mandated Vaccines – Legal?

As we anxiously await the roll-out of the COVID-19 vaccine, employers are undoubtedly wondering if they can or should make the vaccine mandatory.  Currently, there is no law banning such a mandate.  However, if an employer puts such a mandate in place, it must consider making exceptions in compliance with Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA).  Note:  Title VII and the ADA only apply to employers with 15 or more employees.

Specifically, employees who object to a vaccine based on a sincerely held religious belief may be entitled to an exemption under Title VII.  Likewise, an employee may be entitled to an exemption based on an ADA disability that prevents the employee from taking the vaccine.  An employer can deny an employee’s religious or medical exemption request if the employer can prove the exemption would impose an undue hardship on the employer or pose a direct threat to the health and safety of others.  Determining whether an undue hardship or direct threat exists is a very fact-intensive, case-by-case inquiry.  Health care providers, first responders, schools, nursing homes and other business that service high risk populations or work in high risk environments will likely pass the undue hardship/direct threat test.

Because of the potential legal complications with mandating a vaccine, employers may opt instead to establish a policy aimed at encouraging, rather than mandating, employees to get vaccinated.  The encouragement can take the form of setting up free on-site vaccination clinics and/or offering incentives to employees who get vaccinated.  See CDC guidance on Promoting Vaccination in the Workplace.


Arizona Legalizes Recreational Marijuana – What that Means for Employers

Arizona voters decisively voted in favor of Proposition 207, which legalizes limited recreational use, possession, and growth of marijuana for individuals age 21 or older.   The law will go into effect on or before April 2021.

This new law should not be confused with the Arizona Medical Marijuana Act (AMMA), which prohibits employers from discriminating against employees/applicants in non-safety sensitive roles who test positive for marijuana if they have a valid medical marijuana card.  Prop. 207 provides no such employment protections for recreational marijuana users.  In fact, the Proposition expressly states that it does not:

  • restrict the rights of an employer to maintain a drug-and-alcohol-free workplace or affect the ability of employers to have workplace policies restricting the use of marijuana by employees or prospective employees;
  • require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale or cultivation of marijuana in a place of employment; or
  • restrict the rights of employers to prohibit or regulate conduct otherwise allowed by the new Act when such conduct occurs on or in their properties.

So, what does the passage of Prop. 207 mean for employers?  Not much.  An employer can still enforce its substance abuse policy against recreational marijuana users.  To make this point clear, employers should consider amending their policy to specify that the legalization of recreational marijuana use does not excuse a violation of the policy.