The Modern Workplace

EEOC Updates Guidance on COVID-19 and the ADA

On October 13, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance regarding vaccination and other COVID-related workplace issues, providing businesses with important information as they continue to navigate evolving rules and regulations related to the pandemic. The key development from this round of updates is that the EEOC has now clarified that there is no cap or limit under federal employment discrimination laws enforced by the EEOC on the size of vaccine incentives offered by an employer to its employees as long as the vaccine is administered by a third-party health care provider rather than the employer or its agent. Previous guidance had been unclear as to whether incentives for vaccinations had to remain under a certain size or amount in order to comply with the federal American with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). With this update, the EEOC has now removed this uncertainty. If an employer’s vaccine incentive is based on an employee receiving a vaccine from a third-party provider unaffiliated with the employer, such as the employee’s own physician, a pharmacy, or a public health department, there is no limit on the incentive. However, if the employer or an entity affiliated with the employer is administering the vaccine, “the value of the incentive may not be so substantial as to be coercive.” Unfortunately, the EEOC guidance does not provide any additional clarification as to what “substantial” means in this context, so employers seeking to offer incentives for vaccines that they will administer themselves or through a contracted agent may benefit from consulting legal counsel before implementing their program.

In its guidance update, the EEOC also recognized the possibility that “long COVID” may be a legally protected disability under the ADA. The EEOC’s position is consistent with June 2021 guidance on long COVID and the ADA issued by the U.S. Department of Health and Human Services and the U.S. Department of Justice. Long COVID is a condition characterized by fatigue, brain fog, shortness of breath and dizziness upon standing, according to the U.S. Centers for Disease Control and Prevention (“CDC”). Recognition of long COVID as a possible disability has implications for employers as cases of the condition mount even among vaccinated individuals. Under the ADA and similar state to local laws, employers cannot discriminate based on a protected disability and must grant reasonable accommodations when needed for a disability so long as this is not an undue hardship. The EEOC’s guidance stated that technical assistance about COVID-19 as a disability would be released in the coming weeks.

Private-Sector Vaccine Mandate Now One Step Closer to Taking Effect

In other COVID-19 news, on October 12, 2021, the federal Occupational Safety and Health Administration (“OSHA”) provided the White House’s Office of Management and Budget (“OMB”) with the proposed text of an emergency temporary standard (“ETS”) requiring businesses with at least 100 employees to mandate COVID vaccinations or weekly COVID-19 testing. The ETS will implement President Biden’s September 9, 2021, Executive Order calling for larger private businesses to vaccinate or test their employees. The OMB often takes months to review rules that it receives from federal agencies, but it is expected that the OMB will move much more quickly on the OSHA ETS. Once the OMB reviews and approves the ETS, OSHA will then make it available to the public and the ETS is expected to take effect shortly thereafter. 

In announcing that it had sent the proposed ETS to the OMB, OSHA did not reveal any details about the substance of the ETS itself. Therefore, employers will have to wait until the ETS is made public to have answers to a number of crucial questions associated with the ETS, such as how the 100-employee threshold will be determined, whether employers will be required to secure proof of employee vaccinations, and what types of testing will be required for employees who elect not to receive vaccinations.