Updated EEOC Guidance on Vaccines, Masks and Incentives

Late last week, the U.S. Equal Employment Opportunity Commission (EEOC) published FAQs to answer questions regarding the COVID-19 vaccine, loosened mask restrictions, and offering incentives to employees to be vaccinated.

Vaccines, Masks, and Confidential Medical Information:

Remember that under the Centers for Disease Control and Prevention’s current guidelines, fully vaccinated individuals can resume pre-pandemic activities without wearing a mask or staying six feet apart from others (unless otherwise required by law or an employer’s policy), whereas unvaccinated individuals must continue taking these precautions. In its FAQs, the EEOC clarified that, although an employer can obtain and maintain information and records of its employees’ vaccination status, this information is considered “confidential medical information” under the ADA that the employer cannot disclose.

Thus, the question remains whether an employer that allows its vaccinated employees to go mask-less, but enforces a mask policy with its unvaccinated employees, is inadvertently disclosing its employees’ confidential medical information by “outing” those whose status is unvaccinated. However, the likely answer is “no” because the EEOC previously stated that wearing a face mask and social distancing are “reasonable accommodations” for employees who do not get vaccinated due to disability, religious beliefs, or pregnancy. Therefore, if requiring an unvaccinated employee to wear a mask and socially distance is approved by the EEOC, it likely does not equate to disclosing that employee’s confidential medical information.

Incentivizing the COVID-19 Vaccine:

Earlier this year, the EEOC withdrew its proposed wellness plan incentives rules which left great uncertainty for employers offering incentives for participation in wellness plans (which include employer-provided COVID-19 vaccines).

The EEOC’s FAQs clarify that an employer may offer incentives to employees to voluntarily:

• provide documentation or confirmation that they or their family members received the vaccination on their own; or

• receive a vaccination administered by the employer, so long as such incentive is not “so substantial as to be coercive.”

Requesting documentation or other confirmation that an employee or his or her family members received a COVID-19 vaccine from a third party is not a disability-related inquiry under the ADA, nor is it an unlawful request for genetic information under GINA.

Note that an employer may not offer incentives to an employee in exchange for a family member’s receipt of the vaccine from the employer. Providing such an incentive because a family member was vaccinated by the employer would require the employer to ask the family member the pre-vaccination screening questions which include genetic information about the family member (and in turn, the employee). Offering an employee’s family members the vaccine without any incentive would, however, be permissible.