October 28, 2021

EEOC Updates COVID-19 Vax Guidance

Throughout this month of October, the U.S. EEOC has updated its previous guidance on “What You Should Know About COVID-19, the ADA…and Other EEO Laws.” Section L is new. Some items in Section K are updated. Here are a few I found most interesting.

In Section K, related to medical issues and related laws, we have:

Q: Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 10/13/21)

A: No.

I am holding my breath on this one.  I see ADA adverse impact claims on the horizon. Picture this. You have a medical condition that is also a disability under the ADA that prevents you from safely getting vaccinated. Your employer offers a $500 bonus to any employee who gets vaccinated as described above. Would you not be adversely impacted because you do not have equal access to that compensation? You cannot earn the bonus and the reason is directly tied to your disability.

NOTE 1: The answer is also, “No” with regard to the Genetic Information Non-Discrimination Act (GINA).

NOTE 2: The answer is, “Yes” if the vaccine is administered by the employer or its agent.

The new Section L is dedicated to religious accommodation.

I am most grateful for the first Q & A in this Section, L.1.. The EEOC shared their form as a sample for employees to request religious accommodation!  Thank you, U.S. EEOC!

I will paraphrase the next one.

Q: What if the employer doesn’t believe or doubts an employee’s request is based on a sincerely held religious belief?

A1: Assume positive intent.

A2: If you think the request is not sincere, it should be based on “objective evidence” and one or more of three factors: (1) the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); (2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; (3) whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); or (4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

A3: If you have objective evidence, then you may ask for an explanation of how the employee’s religious belief conflicts with your COVID-19 vaccination requirement. Keep in mind, an employee’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.

For all the updates, click here and see Sections K and L.