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Some of the new guidance specifically covers permissible incentives for getting the vaccine. Particularly noteworthy: the guidance states that there are no limits on the value of incentives (under either GINA or ADA) for employees get vaccinated by a health care provider that is not affiliated with the employer.
HT (plus more info): Eric Meyer at The Employer Handbook.
The long-awaited EEOC guidance on COVID-19 vaccines is here. Can employers require employees to get the brand new COVID-19 vaccine? Yes, but.... (you knew there was going to be a "but" right?).
Disability-Related Inquiries
If an employer administers the vaccine to its employees (or contracts with a third party to do it), then there's a small problem. The screening questions include disability-related inquiries. Employers (or their contractors) can only request such information if the questions are "job-related and consistent with business necessity." "To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others." We'll address that "direct threat" analysis below.
Two ways to avoid this issue altogether:
1. Make the screening questions (and therefore the vaccine) voluntary; or
2. Require the employee to show proof of vaccination from a third party that does not have a contract with the employer to administer the vaccine (like a pharmacy or health care provider).
Reasonable Accommodations and Direct Threat Analysis
Surely you saw this issue coming? Individuals with a disability or sincerely held religious belief that precludes them from getting vaccinated may be entitled to an accommodation. The ADA provides an exception if the employee with a disability (and therefore without a vaccine) would pose a direct threat to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation.
What's a "direct threat?" The EEOC identifies four factors:
2. the nature and severity of the potential harm;
3. the likelihood that the potential harm will occur; and
4. the imminence of the potential harm.
"A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite." By contrast, Title VII provides an exception for an employee with a religious objection if the accommodation imposes more than a "de minimis" cost or burden.
If no accommodation is possible without posing a direct threat (disability) or more than de minimis cost (religion), then the employer may exclude the employee from the workplace. But, the EEOC notes, "This does not mean the employer may automatically terminate the worker." The guidance points to other EEO laws and rights - perhaps a hint at telework as an accommodation? Or, perhaps just a reminder that employers have obligations outside of the ADA and Title VII.
Genetic Information Nondiscrimination Act (GINA)
Finally, it is not clear if the screening questions will include requests for genetic information covered by GINA. Juts one more thing to worry about for employers who administer the vaccines themselves (or through a contractor).
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EEOC's proposed rule addresses the extent to which an employer may offer incentives for an employee's spouse to provide information about his or her current or past health status as part of an employer-sponsored wellness program, when he or she participates in the employer's health plan. The proposed rule clarifies that an employer may offer, as a part of its health plan, a limited incentive to an employee whose spouse is covered under the employee's health plan; receives health or genetic services offered by the employer, including as part of a wellness program; and provides information about his or her current or past health status. The limited incentive may take the form of a reward or penalty and may be financial or in-kind (e.g., time-off awards, prizes, or other items of value).
The total incentive for an employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current or past health status may not exceed 30 percent of the total cost of the plan in which the employee and any dependents are enrolled. The proposed rule also says that the maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.
Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.1 To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.Well, yesterday, a jury awarded the plaintiffs $2.25 million in Lowe & Reynolds v. Atlas Logistics Group Retail Services. Volokh Conspiracy has a great post on it, with some excerpts from closing arguments.
Diabetes: Q&A on Diabetes in the Workplace and the ADA
[T]he truth is I carry a "faulty" gene, BRCA1, which sharply increases my risk of developing breast cancer and ovarian cancer. My doctors estimated that I had an 87 percent risk of breast cancer and a 50 percent risk of ovarian cancer, although the risk is different in the case of each woman. Only a fraction of breast cancers result from an inherited gene mutation. Those with a defect in BRCA1 have a 65 percent risk of getting it, on average.Ms. Jolie may not realize it yet, but she just became the poster-child for GINA, the Genetic Information Nondiscrimination Act!
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.And then there are the alternate routes to the same destination. For example, a Pennsylvania employer with 10 employees is not covered by Title VII... but is still prohibited from discriminating on the basis of race by the Pennsylvania Human Relations Act (generally covering employers with four or more employees). Other states have a wrongful termination (aka public policy exception to at-will employment) tort that allows employees to sue their employers for certain types of discrimination regardless of size.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.Employers may wish to include a modified version that just says simply:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information to Employer or its representatives.Is that so hard? Two easy steps employers can take to help comply with GINA. For a similar take, see Human Resource Blog.
A manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).29 C.F.R. § 1635.8(b)(1)(ii)(D)(emphasis added). I underlined words that I think are particularly important.
"GENETICSThere are other revisions as well. For details read the "EEO is the Law" Poster Supplement. And to request up to 10 copies of the poster, fill out the EEOC Poster Request Form.
Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members."
"prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements."The text of the Act is available on GovTrack. On March 2, 2009, the EEOC published a Notice of Proposed Rulemaking. The public comment period ended on May 1, 2009 and the comments are published on Regulations.gov. Additionally, the EEOC has published background information in the form of a brief Q & A. This document provides a great, plain English overview of the new Act. So what's up next? A Final Rule, which the EEOC believes will be published "well in advance" of GINA's November 21st premiere.
