Advice Gleaned from EEOC’s COVID-19 and Vaccine Webinar for Employers

On April 11, 2022, the Equal Employment Opportunity Commission (EEOC) conducted a public webinar broadcast aimed at offering guidance to employers as they continue to navigate uncertain times. Employers need to be especially on guard for the possibility that they may be hit with a vaccine-related EEOC charge, given that nearly half of all pandemic-related charges filed with the agency since December involve a vaccine dispute. We provide you with some highlights from the webinar.

Vigilance When It Comes to Vaccination Disputes
We have been talking about vaccinations for more than a year now. Nevertheless, perhaps the most surprising part of the webinar was the revelation that 43% of all COVID-19-related EEOC charges filed by employees since December 2021 involved a dispute about vaccines. Approximately 2,700 of the 6,200 charges handled by the agency in the past five months raised issues related to the COVID-19 vaccine.
About 20% of all COVID-19 lawsuits filed since December 2021 relate to vaccine disputes – and that number should continue to rise as the EEOC Charges work their way through the administrative process and end up as court filings.

Inquiring About Workers’ Vaccination Status
The EEOC once again confirmed that you can lawfully ask employees their vaccination status without violating federal anti-discrimination laws – provided, of course, the question is limited to a yes-or-no response. While some employers may be dropping their vaccine mandates as conditions of continued employment, many others may now be considering requesting vaccination status for a variety of other activities: for those who want to work in the office setting, those who wish to conduct business travel, those who want to attend work-related conferences or retreats, etc. Moreover, asking employees if they are vaccinated is almost certainly not a HIPAA violation.

Exercise Cautious About Denying Religious Accommodation Requests
The EEOC warned employers during the webinar that they should generally accept a request for a religious accommodation as sincere, unless there is an objective basis to question it. This has obviously been a hot topic given the vast increase in accommodation requests related to COVID-19 vaccine mandates.

Employers Are Not Required to Offer the Requested Accommodation
The EEOC bolstered one of the most critical aspects of the accommodation debate that is often overlooked by employers – employers have no obligation to provide an employee’s preferred reasonable accommodation, so long as the accommodation that they do offer is reasonable. So even if an employee has a legitimate religious basis for not getting the COVID-19 vaccination, that doesn’t mean that they are entitled to carte blanche access to the workplace as they may want. Employers may require them to attend certain meetings virtually; employees may be subject to heightened safety requirements (like constant face-masking at the office); employees may need to present frequent negative COVID-19 tests. Work with legal counsel to develop case-by-case solutions to any accommodation request.

Consider Teleworking as a Reasonable Accommodation
The EEOC spent significant time focusing on one specific type of potential accommodation: teleworking (or remote work, or work-from-home, etc.). The agency noted that teleworking should be at least considered as a reasonable accommodation so long as the employee can perform essential functions of the job. It encouraged employers to look at whether teleworking was previously effective (if applicable) for that particular individual or position before coming to a conclusion about whether it should be offered in a specific situation.

COVID-19 Might Be An ADA-Qualifying Disability
The agency reminded employers that workers with COVID-19 can qualify as having a disability under the Americans with Disabilities Act (ADA) – but not always. The webinar reiterated that the question should be handled as an individualized assessment as with just about any disability inquiry.

Be Wary of Caregiver Discrimination
Finally, the agency confirmed that caregiver discrimination violates Title VII if it is based on the applicant’s or employee’s protected characteristic or association with an individual with a disability (which could also serve as an ADA violation). In other words, employers need to be careful and train managers not to treat unfairly any worker who may need to take time away from work to care for individuals who may be dealing with pandemic-related issues. Work with legal counsel to understand the full ramifications of such issues.

The rules and government guidelines regarding the COVID-19 situation are rapidly changing and developing. Schwartz Rollins LLC is monitoring these changes and will continue to provide updates as we deem appropriate. This information is not intend to be, and should not be construed as, legal advice for any particular fact situation. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130.