The Equal Employment Opportunity Commission (EEOC) has been maintaining a long list of frequently asked questions (FAQs) to help employers understand how federal anti-discrimination laws might protect employees during the pandemic.  Section K of the FAQs have addressed vaccines, including mandates, incentives, accommodations, ability to request proof of vaccination, and confidentiality.  On October 13, 2021, the EEOC updated these FAQs to provide even more clarity as employers brace for President Biden’s executive order.  These updates do not appear to say anything that hasn’t already been clarified by them before and discussed in our September 14 webinar, but below we list out a summary of the Q&As that were updated.  They have, however, added an entirely new section L to address religious accommodations.

  • K.1. reiterates that when mandating vaccination, an interactive accommodation process may be necessary for a disability (including pregnancy-related conditions that constitute a disability) or a sincerely held religious belief, practice, or observance.  Employers “may need to respond to allegations that the requirement has a disparate impact on–or disproportionately excludes–employees based on their race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]).”
  • K.3. reminds employers they can offer general education about vaccines, including how to request help if they have technology or language barriers, helping locate a place to get vaccinated, identify transportation options, and even provide paid time off.  It also makes clear that the employer could arrange for a health care provider to administer vaccines but that would introduce limits on what kinds of incentives they can offer.  Also, “employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant.”
  • K.4 reiterates the importance of confidentiality and keeping medical records separate from personnel files.
  • K.9 reinforces how “requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA” but the info is nevertheless confidential medical information.
  • K.13 reminds employers that while the CDC recommends those “who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future” get vaccinated, “despite these recommendations, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement.”  To avoid disparate treatment in violation of Title VII, “employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests.”  Guidance is given for some considerations and potential accommodations.
  • K.15 reinforces how “an employer requiring an employee to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.”
  • K.16 reiterates there’s no ADA limit on a general incentive to get vaccinated from the employee’s chosen health care provider
  • K.17 reiterates when the employer is providing or contracting vaccines for their employees, incentives “may not be so substantial as to be coercive”
  • K.18 reiterates there’s no GINA limit on a general incentive to get vaccinated from the employee’s chosen health care provider

New Section L addresses questions related to religious accommodation requests and the employer’s interactive process to respond.  Again, nothing terribly “new” here but reiteration of long known principles which are worth your time to read.  In summary:

  • L.1 reminds employers that they should inform employees of the ability and process to request religious accommodation without expecting employees to use any specific wording to trigger the process.
  • L.2 reiterates that religious requests must be presumed to be sincere unless the employer has a reasonable, objective basis to believe otherwise, in which case the employer can ask for some additional supporting information within reason.  Note that someone’s sincerity is generally to be accepted even if it’s not aligned with a formal religion’s stance.
  • L.3 provides a robust discussion of the types of considerations to evaluate to determine whether providing a religious accommodation for employees creates an undue hardship on the employer.  “Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”
  • L.4 reminds employers this is an individualized assessment, so honoring a religious accommodation for one does not necessarily require honoring for another, so long as the employer is fair and consistent in its evaluation process and does not discriminate.
  • L.5 empowers the employer to determine what kind of accommodation is reasonable to offer when multiple options might be feasible.
  • L.6 reminds employers that religious accommodations can always be reconsidered in light of changing circumstances.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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