On May 28, 2021, the EEOC issued updated guidance for employers related to COVID-19 vaccinations in the form of updated questions and answers on its site. The full update is available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. In the introduction to the updated guidance, the EEOC explicitly notes that the updated guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals such that we can expect additional updates in the near future. The biggest takeaway from the updated guidance is confirmation from the EEOC that, subject to accommodations for individuals with disabilities or sincerely held religious beliefs, it is not a violation of federal EEO laws for employers to mandate vaccines for employees entering the workplace. This is the clearest position that the EEOC has taken on the issue to date and should provide employers additional assurance if they choose to mandate vaccinations. The guidance also provides details on how employees can request accommodations and what accommodations an employer might consider for those employees who are unable to be vaccinated. The updated guidance also explains that information about an employee’s vaccination is to be kept confidential under the ADA, such that any documentation or confirmation of vaccination must be kept confidential and stored in a separate personnel file. However, requesting documentation or confirmation of a vaccination is not a disability related inquiry and, except in specific circumstances, HIPAA does not apply to employer requests for information about vaccination status. Finally, the guidance confirms that employers may offer incentives to employees to obtain vaccinations under a voluntary vaccination program but does little in the way of providing concrete guidance or examples of permissible incentives. Instead, the EEOC simply reiterated the otherwise applicable standard that any incentive must not be so substantial as to be coercive. As the guidance makes clear, if you are considering implementing a COVID-19 vaccine mandate for employees or a voluntary incentive program, there are a number of obstacles to navigate. The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly and can help you formulate and communicate your plans to employees. If you have questions about COVID-19 vaccination mandates or incentive programs, please call Greg Currey at 410-522-1020.

On May 13, 2021, the CDC issued its Interim Public Health Recommendations for Fully Vaccinated People. This guidance, which applies to non-healthcare settings, substantially modified the CDC’s prior guidance as to what activities fully vaccinated individuals may engage in based on updated data on the efficacy of the vaccines. This guidance had two significant takeaways. First, subject to state and local laws and workplace guidance, fully vaccinated individuals may resume indoor activities without wearing masks or physically distancing. Second, fully vaccinated individuals with no COVID-like symptoms following an exposure to someone with suspected or confirmed COVID-19 do not need to quarantine, be tested, or be restricted from work.Following the CDC’s announcement, on Friday, May 14, 2021, Governor Hogan issued an updated Executive Order 21-05-14-01 lifting capacity restrictions on all businesses in the state of Maryland and the statewide mask mandate. He further announced that work search requirements for continued eligibility for unemployment benefits will be reinstated in late June. For businesses deciding on reopening plans, these developments could potentially be game-changing. By reinstating the work search rules for unemployment benefit eligibility, employees now have an additional incentive to re-enter the workforce. Lifting mask restrictions and capacity limitations makes it easier to resume in-person operations. That said, there are still hurdles to overcome. Employees still need to self-isolate and/or get tested if they have symptoms of COVID-19 and unvaccinated employees need to self-isolate and/or get tested if they have been exposed to someone with COVID-19. For employers with a high number of unvaccinated employees, distancing measures still may need to be maintained and masks for unvaccinated employees may be required. Finally, even for those workers who have been vaccinated, the general question of whether and to what extent remote work should continue to be offered remains.The attorneys at Luchansky Law are continuously monitoring federal, state, and local developments surrounding COVID-19, which change regularly. If you have questions about how to adjust your business’ return to work plan in light of the most recent developments, please call Greg Currey at 410-522-1020.